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              C L A S S   A C T I O N   R E P O R T E R

              Friday, July 22, 2022, Vol. 24, No. 140

                            Headlines

ALLIED INTERSTATE: Steinmetz FDCPA Suit Dismissed Without Prejudice
B.P. EXPLORATION: Wins Bid for Summary Judgment in Revels Suit
CENTRAL FREIGHT: Court Grants Bid to Strike Answer to Henry Suit
CHARTER COMMUNICATIONS: Guss Claims Dismissed From Johnson Suit
FIRST NAT'L: Ghazaly Suit Remanded to N.C. General Court of Justice

FRANCIS GENERAL: Garcia Awarded $162K in Unpaid OT Wages & Damages
HILLSHIRE BRANDS: Court Narrows Claims in Sanders Consumer Suit
KAKE TRIBA: Supreme Court No. S-17846 Tossed for Lack of Standing
KROGER CO: Ohio Court Denies Bid to Dismiss Kirkbride Class Suit
LAKE POINTE: Order on Church Mutual's Duty to Defend Affirmed

MANHATTAN PARKING: $306K in Fees & Costs Awarded in De La Cruz Suit
MUNICIPAL CREDIT: Court Tosses Thompson Class Suit With Prejudice
NOOM INC: $56-Mil. Class Settlement in Nichols Suit Wins Final OK
PHILADELPHIA, PA: Class Settlement in Remick Suit Gets Final Nod
PORTLAND, OR: Don't Shoot Portland's Bid to Certify Class Denied

RBS CITIZENS: Court Denies Reinig's Renewed Bid to Certify Class
RITZ-CARLTON HOTEL: Bids to Exclude Fox Declaration & Errata Denied
SHOWS CALI: Court Grants Bid for Summary Judgment in Calogero Suit
STRAUB CONSTRUCTION: Durland's Bid for Default Judgment Granted
ZOAN MANAGEMENT: Order Affirming Arbitration in Gist Suit Upheld


                        Asbestos Litigation

ASBESTOS UPDATE: Wash Penn to Pay $3.8MM to Mesothelioma Victim


                            *********

ALLIED INTERSTATE: Steinmetz FDCPA Suit Dismissed Without Prejudice
-------------------------------------------------------------------
Judge Ann M. Donnelly of the U.S. District Court for the Eastern
District of New York dismisses the case, JOEL STEINMETZ,
individually and on behalf of all others similarly situated,
Plaintiff v. ALLIED INTERSTATE, LLC and LVNV FUNDING, LLC,
Defendants, Case No. 21-CV-5059 (AMD) (RER) (E.D.N.Y.), for lack of
subject matter jurisdiction.

I. Background

On Dec. 30, 2021, the Plaintiff filed the amended class action
complaint, asserting claims under the Fair Debt Collection
Practices Act, 15 U.S.C. Section 1692, et seq. (the "FDCPA"). On
Feb. 2, 2022, the defendants moved to dismiss the action pursuant
to Rule 12(b)(6).

The Plaintiff incurred a debt with Synchrony Bank. Synchrony sold
the debt to LVNV Funding LLC ("LVNV"), which then contracted with
Allied to collect the debt. Allied sent the Plaintiff two letters:
An initial collection notice about the debt (the "first letter") on
June 2, 2021, and a second collection notice (the "second letter")
on June 10, 2021.

Both letters identify Synchrony as the original creditor, the
amount owed as $669.45, LVNV as the current creditor and Allied as
the company acting on LVNV's behalf to collect the debt. In the
first letter, Allied wrote that the debt could be resolved by a
payment of $0, but in the second letter, said that it could be
resolved for $575.73. The Plaintiff claims that "when a debt
collector fails to provide the correct amount of the debt, in
violation of statutory law, the debt collector has harmed the
consumer," and alleges that the Defendants' violation of the FDCPA
has harmed him. Moreover, citing the different settlement amounts,
the Plaintiff alleges that he "had to spend time and money
investigating these letters and their consequences," and that "but
for the Defendants' actions, he would have responded differently."

The Plaintiff filed the original complaint on Sept. 10, 2021, and
the first amended complaint on Oct. 27, 2021. With the Defendants'
consent, the Plaintiff filed the second amended complaint (the
"complaint") on Dec. 30, 2021. The Plaintiff alleges violations of
15 U.S.C. Section 1692e ("Count I") and 15 U.S.C. Section 1692g
("Count II").

In Count I, the Plaintiff alleges that the defendants violated
Section 1692e by sending two letters with "statements that are open
to more than one reasonable interpretation, at least one of which
is inaccurate," "falsely representing the character, amount, or
legal status of the debt," and "making a false and misleading
representation." He alleges that the "letters, when read together,
are open to more than one reasonable interpretation:" that "either
the Plaintiff can satisfy the debt for zero dollars or for $575.73,
but not both." In Count II, the Plaintiff alleges that the
"Defendants violated Section 1692g(a) by providing an inaccurate
representation how much Plaintiff needed to pay to satisfy the
outstanding debt in full."

On May 27, 2022, Judge Donnelly directed the parties to file
supplemental briefing "addressing whether the Plaintiff has alleged
injury-in-fact and has Article III standing in light of the Supreme
Court's decision in TransUnion v. Ramirez, 141 S.Ct. 2190 (2021)
and the Second Circuit's decision in Maddox v. Bank of New York
Mellon Trust Company, N.A., 19 F.4th 58 (2d Cir. 2021)." Both
parties say that the plaintiff has alleged injury-in-fact, and has
Article III standing.

III. Discussion

Because standing is a 'threshold matter' in determining whether the
district court has jurisdiction to hear and decide the case, Judge
Donnelly addresses standing at the outset of her analysis." The
Plaintiff claims only that he has been harmed by the Defendants'
statutory violation of the FDCPA, that he "had to spend time and
money investigating the letters and their consequences," and that
"but for the Defendants' actions, he would have responded
differently."

These are not "concrete harms" sufficient to establish Article III
standing, Judge Donnelly holds. First, as the Plaintiff concedes,
confusion alone over a debt collection letter cannot establish
injury-in-fact. Second, the Plaintiff's vague claim that he had to
"spend time and money" investigating the two letters cannot be the
only basis for standing. He does not explain how or on what he
spent "time and money."

Nor do his alleged injuries bear a close relationship to the
traditionally cognizable harm of fraud. The Plaintiff does not
claim that he decided not to make payments on the debt because he
was confused about conflicting settlement amounts, nor does he
explain in the complaint how he would have "responded differently."
The complaint "is devoid of the type of specific factual
allegations that would allow the Court to assume that the Plaintiff
actually relied on the Defendants' representation to his own
detriment, and thus these allegations also fail to establish
standing.

Accordingly, because the Plaintiff does not allege any concrete
injury and does not have Article III standing, the Court lacks
subject matter jurisdiction over this matter, and the claims must
be dismissed. Judge Donnelly does not reach the Defendants'
argument that the complaint should be dismissed for failure to
state a claim.

III. Conclusion

For these reasons, the complaint is dismissed without prejudice for
lack of subject matter jurisdiction, and the Defendants' motion to
dismiss is denied as moot. The Clerk of the Court is respectfully
directed to close the matter.

A full-text copy of the Court's July 12, 2022 Memorandum Decision &
Order is available at https://tinyurl.com/4s6ah5t9 from
Leagle.com.


B.P. EXPLORATION: Wins Bid for Summary Judgment in Revels Suit
--------------------------------------------------------------
In the case, CARL REVELS v. B.P. EXPLORATION & PRODUCTION, INC., ET
AL., Civil Action No. 17-4175 (E.D. La.), Judge Sarah S. Vance of
the U.S. District Court for the Eastern District of Louisiana
grants Defendants BP Exploration & Production, Inc., BP American
Production Co., and BP p.l.c.'s motion for summary judgment and
dismisses the Plaintiff's complaint.

I. Background

The case arises from Plaintiff Revels's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. The Plaintiff alleges that he assisted in the cleanup of
the Deepwater Horizon spill.2 Revels asserts that, as part of this
work, he was exposed to harmful chemicals, including crude oil,
oil-dispersing chemicals, and decontaminants.3 Plaintiff asserts
that this exposure has resulted in "dizziness, nausea, headaches,
sinus problems, eye irritation, rashes, skin lesions and various
pulmonary issues."

Revels' case was originally part of the multidistrict litigation
("MDL") pending before Judge Carl J. Barbier. Revels' case was
severed from the MDL as one of the "B3" cases for plaintiffs who
either opted out of, or were excluded from, the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement. Revels is a
plaintiff who opted out of the settlement. After the Plaintiff's
case was severed, it was reallocated to the Court.

On July 28, 2021, the Court issued a scheduling order that
established, among other deadlines, that the Plaintiff's expert
disclosures had to be "obtained and delivered" to defense counsel
by no later than May 20, 2022. The Defendants now move for summary
judgment, arguing that, because the Plaintiff has not identified
any expert testimony, he is unable to carry his burden on
causation. The Plaintiff has not filed an opposition to the
Defendants' motion.

II. Discussion

The Plaintiff asserts claims for general maritime negligence,
negligence per se, and gross negligence against the Defendants, as
a result of the oil spill and its cleanup. The Defendants contend
that the Plaintiff cannot prove that exposure to oil or dispersants
was the legal cause of his alleged injuries, and thus that he
cannot prove a necessary element of his claims against the
Defendants.

In Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649
(5th Cir. 1992), "under the general maritime law, a party's
negligence is actionable only if it is a 'legal cause' of the
plaintiff's injuries." "Legal cause" is more than but-for
causation; instead, the negligence "must be a 'substantial factor'
in the injury.

In the case, Judge Vance finds that there is no indication that the
Plaintiff has retained an expert to provide testimony at trial to
establish general causation or, to the extent medical expert
testimony is required, to establish specific causation. Nor is
there an indication that the Plaintiff will present expert
causation testimony from his treating physician. The Plaintiff did
not make any expert disclosures by the Court-ordered deadline, nor
did he move for an extension.

Because he cannot prove a necessary element of his claims against
the Defendants, Judge Vance holds that the Plaintiff's claims must
be dismissed.

III. Conclusion

For the foregoing reasons, Judge Vance grants the Defendants'
motion for summary judgment. She dismisses the Plaintiff's
complaint with prejudice.

A full-text copy of the Court's July 8, 2022 Order & Reasons is
available at https://tinyurl.com/y2veh4ty from Leagle.com.


CENTRAL FREIGHT: Court Grants Bid to Strike Answer to Henry Suit
----------------------------------------------------------------
In the case, Rickey Henry, Plaintiffs v. Central Freight Lines,
Inc., et al., Defendants, Case No. 2:16-cv-00280-KJM-JDP (E.D.
Cal.), Judge Kimberly J. Mueller of the U.S. District Court for the
Eastern District of California grants the unopposed motion to
strike Central Freight Lines' answer.

The counsel for Defendant Central Freight Lines has withdrawn, and
the company has not obtained substitute counsel. "It is a
longstanding rule that 'corporations and other unincorporated
associations must appear in court through an attorney.'" This
District's Local Rules enforce that bar. When a corporation does
not appear by counsel, its answer may be stricken. The unopposed
motion to strike Central Freight Lines' answer is thus granted, and
the clerk's office is instructed to enter default against Central
Freight Lines.

The status (pretrial scheduling) conference currently set for Sept.
22, 2022 is vacated. The Plaintiff is directed to file a status
report within 14 days, proposing a schedule for adjudicating the
putative class action.

A full-text copy of the Court's July 8, 2022 Order is available at
https://tinyurl.com/339rp4a5 from Leagle.com.


CHARTER COMMUNICATIONS: Guss Claims Dismissed From Johnson Suit
---------------------------------------------------------------
In the case, LORETTA JOHNSON, et al., Plaintiffs v. CHARTER
COMMUNICATIONS, INC, et al., Defendants, Case No. 21-cv-06135-HSG
(N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the U.S. District
Court for the Northern District of California grants Defendants
Spectrum Management Holding Co., LLC and Charter Communications,
Inc.'s motion to dismiss Plaintiff Charlotte Guss's claims for lack
of personal jurisdiction.

I. Factual Allegations

Plaintiff Guss alleges that her residential phone number
(identified as "XXX-XXX-3272") has been registered on the National
Do Not Call Registry since September 2005. Despite this, in 2020,
Guss received unsolicited telemarketing calls "by or on behalf of
the Defendants," seeking to sell Guss their cable and internet
services.

Ms. Guss resided in California at all relevant times, and was in
California when the calls occurred. The calls stated they were
"from Spectrum." During one call on March 26, 2020, a live agent
attempted to sell Spectrum services to Guss. Guss "believed that
the caller either was a Spectrum employee or had the authority to
act on behalf of Spectrum. Guss was asked to, and did, provide her
personal and sensitive information, such as her home address and
whether she rented or owned her home." Defendants Spectrum
Management Holding Company, LLC and Charter Communications, Inc.
(collectively, "Spectrum") and its agents intentionally recorded
the calls but failed to disclose this to Guss.

Ms. Guss now brings the putative class action against Spectrum,
asserting claims under the California Invasion of Privacy Act and
the Telephone Consumer Protection Act. The Court compelled the
claims of another Plaintiff, Loretta Johnson, to arbitration.
Spectrum moves to dismiss for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2).

II. Discussion

A. General Jurisdiction

Spectrum argues that the Court does not have general jurisdiction
over it because it is not incorporated in California and does not
maintain its principal place of business in California. Guss' brief
does not address this argument. Judge Gilliam concludes that the
Court does not have general personal jurisdiction over Spectrum.

B. Specific Jurisdiction

Spectrum moves to dismiss Guss' claims for lack of personal
jurisdiction on the basis that her claims are not based on any
conduct that "arises out of or relates to Spectrum's forum-related
activities." Guss responds by asserting that Patnekar's declaration
does not contradict her allegations and that the declaration
"merely points out that certain third parties denied making and
recording the calls."

Based on Spectrum's uncontroverted declaration, Judge Gilliam finds
that Guss has not met her burden to show that her claims arose out
of or resulted from Spectrum's California-related activities so as
to establish a basis for personal jurisdiction. The case does not
implicate the potentially challenging outer limits of what a
plaintiff reasonably needs to show to establish jurisdiction (or at
least unlock the door to jurisdictional discovery) when merits and
jurisdictional facts overlap. Instead, this is a "relatively easy"
case in which the Plaintiff, for whatever reason, filed no sworn
affidavit in response to the other side's submission contradicting
the complaint. Under these circumstances, the uncontroverted record
-- including Spectrum's disavowals -- defeats Guss' efforts to
establish specific personal jurisdiction.

C. Jurisdictional Discovery

In the alternative, Guss requests leave to conduct jurisdictional
discovery. For essentially the same reasons he discussed, Judge
Gilliam concludes that Guss' "claim of personal jurisdiction
appears to be based on bare allegations in the face of specific
denials made by the defendants," so as to rest on "little more than
a hunch that it might yield jurisdictionally relevant facts."

Accordingly, Guss has not established an entitlement to
jurisdictional discovery, and her request for such discovery is
denied.

III. Conclusion

Judge Gilliam grants Spectrum's motion to dismiss Guss's claims for
lack of personal jurisdiction. He stays the action pending
resolution of the arbitration as to Plaintiff Loretta Johnson,
subject to the procedures stated in the Court's previous order.

A full-text copy of the Court's July 8, 2022 Order is available at
https://tinyurl.com/ctseu6kc from Leagle.com.


FIRST NAT'L: Ghazaly Suit Remanded to N.C. General Court of Justice
-------------------------------------------------------------------
In the case, DORA SIMMONS GHAZALY, on behalf of herself and all
others similarly situated, Plaintiff v. FIRST NATIONAL COLLECTION
BUREAU, INC., a Nevada Corporation, Defendant, Case No.
5:21-CV-362-FL (E.D.N.C.), Judge Louise W. Flanagan of the U.S.
District Court for the Eastern District of North Carolina, Western
Division, remands the case to the General Court of Justice,
Superior Court Division, Cumberland County, North Carolina, for
further proceedings.

The Plaintiff moved to remand pursuant to Federal Rule of Civil
Procedure 12(h)(3).

I. Introduction

The Plaintiff brought the putative class action July 30, 2021, in
superior court in Cumberland County, North Carolina claiming the
Defendant violated the Fair Debt Collection Practices Act, 15
U.S.C. Section 1692 et seq. ("FDCPA"), the North Carolina Debt
Collection Act, N.C. Gen. Stat. Section 75-50 et seq., and the
North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen.
Stat. Section 75-1.1.

The putative class consists of consumers in North Carolina whose
debt information defendant sent to a third party without prior
consent. The Plaintiff seeks compensatory and punitive damages,
costs, interest, and attorneys' fees.

The Defendant removed the action to the Court Sept. 9, 2021,
pursuant to 28 U.S.C. Section 1331 and arising out of the
Plaintiff's FDCPA claim. It subsequently answered the Plaintiff's
complaint, and the Court entered a scheduling order.

The Plaintiff filed the instant motion March 7, 2022, asserting
that the facts alleged in her complaint fail to establish Article
III standing, and thus remand to Cumberland County is proper. The
Defendant responded in opposition, and the Plaintiff replied.

II. Background

The Defendant is engaged in the business of collecting debt owed to
creditors. The Plaintiff owes $594.75 to First Premier Bank, and
that debt was in default. At a date uncertain, First Premier Bank
"transferred" the Plaintiff's debt to the Defendant.

In an effort to collect the debt, the Defendant engaged a
third-party vendor to prepare and send the Plaintiff letters. It
sent information about the Plaintiff to that third-party vendor,
who then "populated" the debt information "into a prewritten
template," printed the resulting letters, and mailed them to the
Plaintiff.

The Plaintiff received and read two such letters Aug. 25, 2020, and
April 8, 2021. She did not consent to the Defendant's disclosure of
her debt information to the third-party vendor.

III. Analysis

The Plaintiff asserts the Defendant failed to demonstrate Article
III standing on the basis of her complaint.

Judge Flanagan agrees. She explains, to have standing to sue, a
"plaintiff must have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial
decision." Facts demonstrating each element must be clearly
alleged.

In the instant case, the Plaintiff claims only a violation of a
statute, but not any concrete injury. She asserts in the complaint
that the Defendant violated the FDCPA by sharing her information
with a third-party mailing vendor in connection with the collection
of a debt. Specifically, she claims that by sharing her information
with the mailing vendor, the Defendant violated 15 U.S.C. Section
1692c(b), which prohibits debt collectors from communicating "with
any person other than the consumer" regarding the collection of a
debt. She claims the Defendant additionally violated 15 U.S.C.
Section 1692f by using "unfair or unconscionable means to collect
or attempt to collect a debt."

On review of the Plaintiff's complaint, Judge Flanagan holds that
it is clear she has not. As an initial matter, the Plaintiff fails
to make specific allegations of injury from the alleged disclosure
at issue. The harms alleged additionally lack a "close
relationship" to the harms caused by traditional torts. The harm
alleged is not merely different in degree from that caused by an
intrusion upon seclusion, but different in kind. The Defendant,
bearing the burden of establishing standing on removal, has thus
failed to establish standing on the facts alleged in the
Plaintiff's complaint.

In sum, since the Defendant is unable to identify pleaded facts
showing the Plaintiff suffered a concrete injury, it has not
demonstrated Article III standing sufficient to establish subject
matter jurisdiction over the Plaintiff's claims. Therefore, the
case must be remanded.

IV. Conclusion

Based on the foregoing, Judge Flanagan grants the Plaintiff's
motion to remand. She remands the case to the General Court of
Justice, Superior Court Division, Cumberland County, North
Carolina, for further proceedings. The clerk is directed to
transmit a certified copy of the Order to the clerk of the General
Court of Justice, Superior Court Division, Cumberland County, North
Carolina, and to file in the case a copy of the clerk's transmittal
letter with certified copy of the instant order.

A full-text copy of the Court's July 8, 2022 Order is available at
https://tinyurl.com/7wckbznm from Leagle.com.


FRANCIS GENERAL: Garcia Awarded $162K in Unpaid OT Wages & Damages
------------------------------------------------------------------
In the case, JOSE ANTONIO LLUILEMA GARCIA, individually and on
behalf of other similarly situated, Plaintiff v. FRANCIS GENERAL
CONSTRUCTION INC., et al., Defendants, Case No. 20 Civ. 4323 (JPC)
(S.D.N.Y.), Judge John P. Cronan of the U.S. District Court for the
Southern District of New York issues an Opinion and Order awarding
Garcia $81,156.67 in unpaid overtime wages, $81,156.67 in
liquidated damages, pre-judgment interest on unpaid overtime wages
to be calculated by the Clerk's Office, $5,000 in paystub violation
damages, $5,000 in time-of-hire violation damages, $9,881.40 in
attorneys' fees, $296.20 in costs, and post-judgment interest.

I. Introduction

On Jan. 20, 2022, the Court held a hearing on its order to show
cause for why it should not enter a default judgment against
Defendants Francis General Construction Inc. and Francisco Peralta.
For the reasons stated on the record at the hearing, the Court
granted Plaintiff Jose Antonio Lluilema Garcia's motion for default
judgment on liability but deferred ruling on Garcia's request for
damages, attorneys' fees, and costs. A month later, the Court held
an evidentiary inquest hearing on Garcia's requested damages, at
which Garcia testified. Garcia then supplemented his request for
damages, attorneys' fees, and costs with further submissions.

II. Background

Mr. Garcia worked for Francis General Construction from around 2007
to Sept. 9, 2019. During that time, Francisco Peralta -- who owned
Francis General Construction -- was Garcia's boss.

Mr. Garcia worked long hours at Francis General Construction. For
half of the year -- during what he called the "warm months" --
Garcia worked seven days a week from "six in the morning" until
"nine in the evening" with a half-hour lunch break. For the other
half of the year -- that is, the "cold months" -- Garcia worked six
days a week from 8:00 a.m. until a varying time around "five, six,
or 7:00 p.m." with a half-hour lunch break. Throughout the year, on
average about once a month, Garcia would not work when it "rained
or snowed" and there was no interior work.

The Defendants paid Garcia a flat daily rate during his employment.
When Garcia began working for Francis General Construction in 2007,
he made $120 per day. Then around 2012, he received a raise to $180
per day. Garcia was typically paid in cash, except for once when he
received a $900 check signed by Francisco Peralta to cover one
week's worth of work. And when Garcia was paid, he never received a
pay stub.

Eight or nine people worked with Garcia during his time at Francis
General Construction. He would begin each day at Francisco
Peralta's house in Queens to help load tools into a Francis General
Construction truck. Garcia and the other employees would then head
to the job site, which was almost always in New York City. But on
three or four occasions, Garcia performed work on houses on Long
Island.

Mr. Garcia brought the putative class action on June 6, 2020.
Almost a year later, on May 27, 2021, after the Defendants did not
appear, the Court held a hearing on Garcia's motion for a default
judgment, and his motion for attorneys' fees and costs. At that
hearing, Francisco Peralta appeared pro se. Because of Francisco
Peralta's appearance, the Court adjourned the default judgment
hearing and ordered the parties to confer about the litigation.
Since then, Francisco Peralta has not appeared again, and Garcia's
counsel has been unable to contact him.

Later that summer, on Aug. 2, 2021, Garcia filed his First Amended
Complaint. In it, he brought seven causes of action: (1) violating
the Fair Labor Standards Act ("FLSA") by failing to pay minimum
wage, (2) violating the New York Labor Law ("NYLL") by failing to
pay minimum wage, (3) violating the FLSA by failing to pay overtime
wages, (4) violating the NYLL by failing to pay overtime wages, (5)
violating the NYLL by failing to pay spread of time, (6) violating
the NYLL by failing to provide wage notice at the time of hire, and
(7) violating the NYLL by failing to provide wage statements.

The Defendants were served with the First Amended Complaint on Aug.
26, 2021, making their answer due by Sept. 16, 2021. Neither the
Defendant has responded to the First Amended Complaint. Nor has
either the Defendant appeared since the May 27, 2021 default
judgment hearing. On Dec. 22, 2021, Garcia again moved for a
default judgment, and sought attorneys' fees and costs. On Jan. 20,
2022, the Court held another default judgment hearing. There, the
Court found both the Defendants liable on all causes of action in
the First Amended Complaint, and reserved judgment on damages,
attorneys' fees, and costs.

On Feb. 22, 2022, the Court held an evidentiary inquest hearing on
Garcia's requested damages, at which Garcia testified about the
hours he worked for the Defendants. After the inquest hearing,
Garcia supplemented his damages request by filing further
submissions in support of his motion for damages, pre-judgment
interest, attorneys' fees, costs, and post-judgment interest.

Mr. Garcia now seeks $211,910.33 in total damages: $81,328.40 in
compensatory damages, $81,328.40 in liquidated damages, $5,000 in
paystub violation damages, $5,000 in time-of-hire violation
damages, $37,267.68 in pre-judgment interest, and post-judgment
interest. He also seeks $32,449.50 in fees and $296.20 in costs.

III. Discussion

A. Damages

a. Unpaid Wages and Overtime Damages

Judge Cronan begins with Garcia's request for $78,328.40 in unpaid
overtime wages and $3,000 in unpaid wages. Although the Defendants'
failure to pay Garcia paid overtime wages violated both the FLSA
and the NYLL, Garcia only seeks damages under the NYLL. Because the
case was initiated on June 6, 2020, Garcia can seek damages under
the NYLL for unpaid overtime going back to June 6, 2014. Judge
Cronan finds that throughout the relevant time, Garcia was paid a
flat rate of $180 per day. Based on the hours and the corresponding
regular rate, he says Garcia is entitled to $81,156.67 in overtime
wages under the NYLL.

b. Liquidated Damages

Next, Garcia seeks liquidated damages under the NYLL equaling 100%
of the unpaid wages. The NYLL allows for liquidated damages awards
equaling one hundred percent of the wages due, "with an exception
for good faith." Under the NYLL, "liquidated damages are presumed
unless defendants can show subjective good faith." Because the
Defendants have defaulted, Judge Cronan opines that they have not
met their burden to rebut this presumption. Garcia is thus entitled
to $81,156.67 in liquidated damages -- 100% of his unpaid overtime
wages.

c. Pre-Judgment Interest

Judge Cronan now turns to Garcia's request for pre-judgment
interest for his unpaid minimum wages and overtime wages. He finds
that Garcia has a right to pre-judgment interest at New York's
statutory rate of 9% per year. He therefore calculates Garcia's
pre-judgment interest on $81,156.67 (i.e., the unpaid overtime he
is owed) as of Jan. 15, 2017, which is the approximate midpoint
date of the period of his employment at Francis General
Construction for which he is owed those damages.

d. Written Notice and Wage Statement Damages

Garcia next seeks $5,000 in penalties for the Defendants' failure
to provide the required wage notice and $5,000 for their failure to
provide the required wage statements. Given that the Defendants
never provided Garcia these required documents during his
employment, Judge Cronan holds that Garcia is entitled to $5,000 in
penalties for the Defendants' failure to provide the required wage
notice and $5,000 for failing to provide the required wage
statements.

e. Post-Judgment Interest

Lastly, Garcia has a right to post-judgment interest under 28
U.S.C. Section 1961(a). Section 1961 provides that "interest will
be allowed on any money judgment in a civil case recovered in a
district court." This statutory language requires the Court to
grant post-judgment interest. Under the statute, interest is
calculated "from the date of the entry of judgment, at a rate equal
to the weekly average 1-year constant maturity Treasury yield, as
published by the Board of Governors of the Federal Reserve System,
for the calendar week preceding the date of the judgment." Judge
Cronan therefore grants post-judgment interest at the statutory
rate.

B. Attorneys' Fees and Costs

Lastly, Judge Cronan turns to Garcia's request for attorneys' fees
and costs. "Under both the FLSA and the NYLL, prevailing plaintiffs
are entitled to an award of reasonable attorneys' fees and costs."
Troy Law is seeking fees on behalf of John Troy, Aaron Schweitzer,
Tiffany Troy, Maggie Huang, and Preethi Kilaru. John Troy requests
an hourly rate of $600, Aaron Schweitzer an hourly rate of $400,
Tiffany Troy an hourly rate of $200, Maggie Huang an hourly rate of
$150, and Preethi Kilaru an hourly rate of $200.

Judge Cronan finds these requested fees excessive. He agrees with
the many other courts in this District to have reduced Troy Law's
requested rates. This is particularly the case given counsel's
performance in the case. Troy Law repeatedly submitted memoranda
and affidavits with discrepancies and errors. The billing log also
includes John Troy and Aaron Schweitzer billing for tasks that a
paralegal or junior attorney could perform. Judge Cronan therefore
reduces the proposed hourly rates to $300 per hour for John Troy,
$150 per hour for Aaron Schweitzer, $150 per hour for Tiffany Troy,
$100 per hour for Maggie Huang, and $70 per hour for Preethi
Kilaru.

Judge Cronan next turns to the requested hours. He finds that the
billed hours are excessive as well. The counsel took over the case
after the original complaint was filed. It has filed routine
default judgment papers and an amended complaint. And as mentioned,
some of the work was duplicative and error-ridden. In reviewing the
detailed timesheet, Judge Cronan finds reducing the hours by
one-third is warranted.

Turning to the costs, Garcia's counsel seeks $296.20 in
reimbursement for court filing fees and expenses incurred for
filing, research, postage, process servers, and printing. He finds
these costs reasonable.

IV. Conclusion

For the reasons he discussed, Judge Cronan awards Garcia damages
from Defendants Francis General Construction Inc. and Francisco
Peralta, as well as attorneys' fees and costs. The Clerk of the
Court is respectfully directed to calculate pre-judgment interest
at the statutory rate of 9% a year of the damages for unpaid
overtime in the amount of $81,156.67 from Jan. 15, 2017 to the date
of judgment. The Clerk of the Court is further directed to enter
judgment in favor of Garcia against Defendants Francis General
Construction Inc. and Francisco Peralta as follows: $81,156.67 in
overtime wages, $81,156.67 in liquidated damages, pre-judgment
interest on $81,156.67 that is calculated from Jan. 15, 2017 to the
date judgment is entered, $5,000 in paystub violation damages,
$5,000 in time-of-hire violation damages, an award of $9,881.40 in
attorneys' fees, $296.20 in costs, and post-judgment interest. The
Clerk of the Court is also respectfully directed to close any
pending motions and to close the case.

A full-text copy of the Court's July 12, 2022 Opinion & Order is
available at https://tinyurl.com/4bdcusus from Leagle.com.


HILLSHIRE BRANDS: Court Narrows Claims in Sanders Consumer Suit
---------------------------------------------------------------
In the case, ERIN SANDERS, individually and on behalf of all others
similarly situated, Plaintiff v. THE HILLSHIRE BRANDS COMPANY,
Defendant, Case No. 21-cv-1155-SMY (S.D. Ill.), Judge Staci M.
Yandle of the U.S. District Court for the Southern District of
Illinois grants in part and denies in part Hillshire's Motion to
Dismiss for Failure to State a Claim.

I. Introduction

In this putative class action, Plaintiff Sanders alleges that
Defendant Hillshire misrepresented to consumers that its product
"Delights English Muffin" by Hillshire's Jimmy Dean brand is made
predominantly with whole grain wheat flour. Sanders asserts
violations of the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILCS 505/1 et seq.; breaches of express
warranty, implied warranty, and the Magnuson Moss Warranty Act, 15
U.S.C. Sections 2301, et seq.; negligent misrepresentation; fraud;
and unjust enrichment.

Now pending before the Court is Hillshire's Motion to Dismiss for
Failure to State a Claim (Doc. 6), which Sanders opposes.

II. Background

Hillshire manufactures, labels, markets, and sells breakfast
sandwiches purporting to be "English muffins made with whole
grain." Sanders alleges the Product's label is misleading because,
while the Product's front label prominently states, "MADE WITH
WHOLE GRAIN," the primary ingredient in the sandwich portion of the
Product is enriched wheat flour. The amount of whole grain wheat
flour in the Product is slightly above two percent of the total
weight of ingredients used in the English muffin portion of the
Product and contains only two grams of dietary fiber per serving,
consistent with a food with a de minimis amount of whole grain. A
product must contain at least 8 grams of dry whole grain ingredient
per labeled serving size of the meat or poultry product to make a
whole grain claim under USDA Rules.

Ms. Sanders purchased the Product on at least one occasion between
August 2021 and September 2021. She claims the Product does not
contain 8 grams of whole grain per serving, nor is the bread
predominantly whole grain, despite the reasonable expectation that
the "made with whole grain" claim denotes a product with at least a
minimum amount of whole grains. Sanders maintains that the
marketing of the Product is misleading because the bread contains
mostly non-whole grains and only a small amount of whole grains.

Ms. Sanders purchased the Product because she expected it would
contain a predominant amount of whole grain flour. She would not
have purchased the Product absent Hillshire's false and misleading
statements and omissions. She intends to, seeks to, and will
purchase the Product again when she can do so with the assurance
that the Product's representations are consistent with its
composition.

Ms. Sanders requests compensatory and injunctive relief, and seeks
to represent an Illinois class including: All persons in the State
of Illinois who purchased the Product during the statutes of
limitations for each cause of action alleged.

III. Discussion

Hillshire argues that Sanders' claims are subject to dismissal on
numerous grounds: (1) she has not plausibly alleged that the made
with whole grain label statement is deceptive; (2) her warranty
claims fail because she has not alleged privity or that she served
proper notice; (3) the Complaint fails to allege facts about
Hillshire that give rise to a strong inference of fraudulent
intent; (4) her negligent misrepresentation claims are barred under
the Moorman doctrine; (5) her unjust enrichment claim fails to
state a claim; and (6) she lacks standing to seek injunctive
relief.

A. Illinois Consumer Fraud and Deceptive Practices Act ("ICFA")

Ms. Sanders claims deceptive practices. Specifically, she alleges
that the Product's labeling "Made With Whole Grain" suggests to a
reasonable consumer that the sandwich portion of the Product was
either predominantly made with whole grain, or at least contains a
non de minimis amount of whole grain. Hillshire maintains that
Sanders is unable to demonstrate that the "Made With Whole Grain*"
statement is likely to mislead a reasonable consumer because the
statement is truthful and not deceptive. It further argues that
Sanders claim is implausible because the asterisk on the Product
directs consumers to the additional information disclosed on the
Product's packaging.

Judge Yandle finds that the Product's packaging arguably suggests
to a reasonable consumer that it contains primarily whole grain.
Instead, as the side panel reflects, it contains only 5 grams of
whole grain per sandwich; enriched wheat flour is the predominant
ingredient. Sanders sufficiently alleges that the representation is
misleading to a reasonable consumer because it implies that whole
grain flour is the primary ingredient of the English muffin. And
the language and information on the side panel does not destroy
Sander's claims. To survive a motion to dismiss, Sanders need only
nudge her claims across the line from conceivable to plausible. She
has done so and has sufficiently alleged that the Product's
packaging is misleading.

B. Breach of Warranty

Judge Yandle holds that Hillshire correctly argues that Sanders'
state law warranty claims fail because she has not alleged privity
or that timely notice was provided of the alleged breach. Claims
for breach of implied warranty and breach of express warranty are
contractual claims requiring privity of contract. Sanders and
Hillshire are not in privity because she did not purchase the
Product directly from Hillshire.

Ms. Sanders' breach of warranty claim under the Magnuson-Moss
Warranty Act ("MMWA") also fails. Under the MMWA, a written
warranty is a fact or promise that "affirms or promises that such
material or workmanship is defect free or will meet a specified
level of performance over a specified period of time." The
description, "Made With Whole Grain" is not a "written warranty"
under the MMWA; it makes no claim that the Product is free of
defects or will meet a specified level of performance over a
specified period of time. For these reasons, Hillshire's motion to
dismiss is granted as to Sanders' warranty claims.

C. Fraud

Hillshire contends that Sanders fails to allege specific facts
showing that it had the requisite scienter to defraud.

Judge Yandle finds that she does not address this argument; she
simply argues that the Rule 9(b) pleading requirements are met
because she alleges the "who, what, where, when, and how" of the
fraud. With respect to fraud, Sanders alleges that "Hillshire
mispresented and/or omitted the attributes of the qualities of the
Product" and that "Hillshire's fraudulent intent is evinced by its
knowledge that the Product was not consistent with its
representations." These conclusory allegations fall short of Rule
9(b)'s pleading requirements, according to Judge Yandle.
Accordingly, he grants Hillshire's motion with respect to Sanders'
fraud claim.

D. Negligent Misrepresentation

Under the Moorman doctrine or "economic loss doctrine," claims
solely alleging injury to economic interests must proceed only
under contract law, as opposed to both contract and tort law.
Citing Congregation of the Passion, Holy Cross Province v. Touche
Ross & Co., 636 N.E.2d 503, 515 (1994), Sanders argues that her
claim satisfies an exception to the Moorman doctrine: when a
defendant made negligent misrepresentations while in the business
of supplying information for the guidance of others in their
business transactions.

Judge Yandle states that Illinois courts have applied this
exception to a variety of commercial information providers, such as
accountants, banks that provide credit information, product and
real-estate inspectors, title insurers, and stockbrokers. But the
exception may only be applied to businesses providing commercial
information, not tangible products such as breakfast sandwiches.
Accordingly, Sanders' negligent misrepresentation claim will be
dismissed.

E. Unjust Enrichment

In Illinois, "to state a cause of action based on a theory of
unjust enrichment, a plaintiff must allege that the defendant has
unjustly retained a benefit to the plaintiff's detriment, and that
defendant's retention of the benefit violates the fundamental
principles of justice, equity, and good conscience. According to
Judge Yandle, Sanders' unjust enrichment claim, which is based on
the same conduct underlying her ICFA claim, remains viable. So,
Hillshire's motion to dismiss Sanders' unjust enrichment claim is
denied.

F. Injunction

Hillside argues that Sanders lacks standing to seek injunctive
relief because she is now aware of the allegedly deceptive nature
of the label. Sanders asserts that she "intends to, seeks to, and
will purchase the Product again when she can do so with the
assurance that Product's representations are consistent with its
composition.

But, Judge Yandle holds, that merely purchasing the Product does
not trigger Sander's injury. Her injury lies in purchasing the
Product under the influence of a deceptive label. There is no
chance she can claim to be harmed in the future -- tricked again by
"Made With Whole Grain" -- as she now knows that the ingredient
list shows the Product's true composition. As such, Sanders lacks
standing to pursue injunctive relief; her claim will be dismissed
accordingly.

IV. Conclusion

The Defendant's motion to dismiss Plaintiff Erin Sanders' claims
for breach of express warranty, implied warranty, and the Magnuson
Moss Warranty Act; negligent misrepresentation; fraud; and her
request for injunctive relief is granted. The Plaintiff may proceed
on her claims under the ICFA and for unjust enrichment.

A full-text copy of the Court's July 8, 2022 Memorandum & Order is
available at https://tinyurl.com/5n8a2wk8 from Leagle.com.


KAKE TRIBA: Supreme Court No. S-17846 Tossed for Lack of Standing
-----------------------------------------------------------------
In the case, Fred W. Triem, Appellant v. Kake Tribal Corporation,
Arlene Hanson, et al., Appellees. Clifford W. Tagaban, Appellant v.
Kake Tribal Corporation, Lorraine Jackson, et al., Appellees,
Supreme Court Nos. S-17767, S-17846, consolidated, Superior Court
Case Nos. 1PE-90-00072 CI/1PE-95-00001 CI, Order No. 117 (Alaska),
the Supreme Court of Alaska dismisses Supreme Court No. S-17846 for
lack of standing.

Clifford Tagaban and his counsel Fred Triemchallenge the release of
debt that Kake Tribal Corporation (KTC) owes to two classes of
shareholders. The Supreme Court of Alaska previously set forth many
of the underlying facts in Hanson v. Kake Tribal Corporation. In
the early 1990s the Hanson class, represented by Triem, sued KTC
alleging that a benefit distribution plan unfairly discriminated
among shareholders. Tagaban served as a class representative for
the Hanson class. After Supreme Court of Alaska affirmed KTC's
liability to the class, the superior court awarded the class total
damages of $2,697,547.10 and costs of $8,056.49. It also awarded
Triem attorney's fees, granting him one-third of the common fund
recovered by the class.

During the Hanson class proceedings, Triem filed another class
action on behalf of Tagaban and a different set of shareholders who
would become the Martin class. When Triem filed a motion for class
certification on behalf of Tagaban, another putative class member,
Harold Martin, moved to intervene. Martin argued that Tagaban and
Triem were an improper class representative and counsel
respectively, explaining that the motion for class certification
excluded shareholders who participated in Hanson and that Tagaban
was a member of and named plaintiff for the Hanson class. Triem was
at no time appointed as class counsel.

The trial court allowed Martin to intervene and approved a class
for the purposes of settlement, which had already been negotiated.
The settlement identified Budd Simpson as class counsel. The
stipulation of settlement defined a class member as "any
Shareholder who owns shares of KTC stock that are not included as
Hanson shares." The settlement eventually incorporated a list of
class members, which did not include Tagaban. The settlement
required payments to the class at a rate of $98 per share,
attorney's fees, and costs.

In 2001 KTC filed a reorganization plan in the United States
Bankruptcy Court, District of Alaska under Chapter 11 of the United
States Code. The reorganization plan addressed both the Hanson
class and Martin class debts. The Bankruptcy Court confirmed the
reorganization plan in 2002. In 2017 Triem and Tagaban were
replaced as class counsel and representative for the Hanson class.

In recent years both classes internally voted to relieve KTC of its
outstanding debt to the classes. In August 2019 Triem moved on
behalf of Tagaban to enforce the Hanson judgment. In November 2019
the Hanson class moved for the court to approve the class's
forgiveness of KTC's debt. In a pair of orders issued on the same
day, the superior court approved the Hanson class's vote to forgive
the debt, framing it as a motion for relief under Alaska Civil Rule
60(b), and denied Triem's motion to enforce the original judgment.

The Martin class voted both to forgive KTC's debt and to replace
the deceased class representative. Following the votes the Martin
class moved for court approval of a new class representative and to
relieve KTC of its debt to the class. After soliciting and
receiving additional information about the new proposed
representative, the superior court granted the motion for
replacement of the class representative and affirmed the vote to
release the debt, again framing it as a Rule 60(b) motion.

Appellants Triem and Tagaban appeal the superior court's orders
relieving KTC from the judgments in both actions and the court's
denial of the motion to enforce the Hanson judgment. This order
serves to dispense with several arguments raised in this appeal and
invites further briefing on substantive issues yet to be decided.

First, the Supreme Court of Alaska dismisses the appeal of the
Martin class proceedings for lack of standing. Second, it holds
that the superior court had jurisdiction to consider and decide the
Hanson class litigation currently at issue. Third, it holds that
Triem does not have standing and is not a real party in interest
with the authority to prosecute the Hanson class appeal. Fourth, it
declines to consider Triem's argument that the superior court
improperly sanctioned him because the order imposing sanctions is
not before the court inthis appeal. Finally, the Supreme Court of
Alaska holds that the superior court's orders did not constitute
judicial takings or improper impairments of contract.

KTC and the Martin class argue that Tagaban and Triem lack standing
in the Martin class appeal and that it should therefore be
dismissed. The Supreme Court of Alaska agrees. Because Tagaban has
not identified any personal adverse impact from the Martinclass
orders, he fails to satisfy the adversity requirement and therefore
does not have standing. Tagaban cannot allege injury on behalf of a
group of class members if he himself has not suffered an injury.
Similarly, Triem has not identified any personal adverse impact
from the Martin decision, nor did he ever serve as class counsel.
Therefore, Triem has not individually satisfied the interest-injury
requirement for standing. The Supreme Court of Alaska thus
dismisses the Martin class appeal and addresses only the remainder
of Triem and Tagaban's claims as they relate to the Hanson class
action.

Appellants Triem and Tagaban contend that the Bankruptcy Court
retained exclusive jurisdiction over the Hanson class action after
it confirmed KTC's Chapter 11 reorganization plan, and that the
superior court thus lacked jurisdiction to provide relief from
judgment. As the superior court noted, however, the Bankruptcy
Court did not explicitly retain exclusive jurisdiction when it
approved the reorganization plan, and the issues before us do not
otherwise fall under the federal courts' exclusive jurisdiction.
Therefore, the superior court has jurisdiction. KTC urges the
Supreme Court of Alaska to conclude that the Bankruptcy Court no
longer retains jurisdiction over the case. Doing so is unnecessary
to resolve the jurisdiction question, as the superior court had at
least concurrent jurisdiction to provide relief from judgment.

KTC argues that Triem lacks standing and does not have the auth
ority to prosecute the Hanson class appeal. Because Triem has not
identified any individual adverse impacts stemming from the
superior court's orders, the Supreme Court of Alaska agrees that
Triem lacks standing. In general, an attorney is not a party with
the authority to appeal on the attorney's own behalf. Triem has not
set forth any convincing reason the case should be an exception to
that rule, particularly given that the attorney's fee award in this
case is not under attack.

It appears Triem also seeks to appeal a superior court order sa
nctioning him pursuant to Alaska Civil Rule 77(j), but this issue
is not properly before us and we decline to address it. Triem
previously appealed the same order, and the Supreme Court of Alaska
ultimately dismissed that appeal for want of prosecution. Under
Alaska Appellate Rule 511.5, once an appeal has been dismissed for
want of prosecution, the appellant may not remedy the default
absent an order by this court to reinstate the appeal.15 No such
order has been issued here.

Appellants Triem and Tagaban further argue, for the first time on
appeal, that granting relief from judgment violates the Takings and
Contracts Clauses of the U.S. Constitution. The Supreme Court of
Alaska generally "will not consider an issue raised for the first
time on appeal" unless the issue amounts to plain error or, among
othercriteria, "could have been gleaned from the pleadings." Triem
and Tagaban fail to cite any controlling authority for their claim
that relieving the parties from judgment constitutes a judicial
taking,18 and we can discern no viable theory supporting their
argument. The Contracts Clause argument is similarly without merit;
the U.S. Supreme Court has expressly rejected the notion that state
courts' rulings on contracts would implicate the Contracts Clause.
The Supreme Court of Alaska declines to further consider these
belated arguments.

The issue remaining before the Supreme Court of Alaska is whether
and to what extent Tagaban, a Hanson class member, is a real party
in interest with standing and authority to challenge the superior
court's order relieving KTC from its debt to the Hanson class. In
considering this issue, it contemplates the related question of
what opportunity Tagaban and other individual class members had or
should have had to object to the agreement by most class members to
release KTC's debt and to the process underlying that agreement. It
strikes the Supreme Court of Alaska that the class's decision to
release KTC from the debt may best be considered a settlement
agreement pursuant to Alaska Civil Rule 23. Because the parties did
not discuss Rule 23 in their briefing or arguments, the Supreme
Court of Alaska invite supplemental briefing on whether Rule
23(d)-(e) applies and whether its requirements have been satisfied.
This briefing may include further discussion of whether Tagaban is
a real party in interest with the authority to pursue the appeal as
to the Hanson class proceedings.

In light of the foregoing, the Supreme Court dismisses Supreme
Court No. S-17846 for lack of standing.

The parties will file supplemental briefs that address the
following issues: Whether Alaska Civil Rule 23(d)-(e) is applicable
to the superior court's order approving the Hanson class vote to
release KTC from its debt; if so, whether the requirements of
Alaska Civil Rule 23(d)-(e) have been met; and whether Tagaban is a
real party in interest under Alaska Civil Rule 17.

The briefs will be filed as memoranda and will not exceed 20
pages.

The Appellant's memorandum is due Aug. 8, 2022, and the Appellee's
memorandum will be filed by Sept. 9, 2022.

Order is entered at the direction of the Court.

A full-text copy of the Court's July 8, 2022 Order is available at
https://tinyurl.com/3w2urj93 from Leagle.com.


KROGER CO: Ohio Court Denies Bid to Dismiss Kirkbride Class Suit
----------------------------------------------------------------
In the case, JUDY KIRKBRIDE, et al., individually, and on behalf of
all others similarly situated, Plaintiffs v. THE KROGER CO.,
Defendant, Case No. 2:21-cv-0022 (S.D. Ohio), Judge Algenon L.
Marbley of the U.S. District Court for the Southern District of
Ohio, Eastern Division, enters an Opinion and Order:

   a. denying the Defendant's Motion to Dismiss and Motion to
      Strike Class Allegations; and

   b. striking the Plaintiffs' request for injunctive relief, as
      are their class allegations under Rule 23(b)(1) and (b)(2).

I. Background

The Named Plaintiffs, residents of Ohio and Texas, bring the case
on behalf of a putative class "defined as all persons in the United
States who paid for, in full or in part, a prescription generic
drug that Kroger included in its Rx Savings Club, and who were
insured for the purchase through a third-party payor." The
Plaintiffs also define subclasses in Ohio and Texas, with otherwise
identical parameters to the nationwide class. As alleged, Defendant
Kroger harmed the Plaintiffs and the class through "a fraudulent
and deceptive pricing scheme to overcharge customers with
third-party insurance providers. . . on purchases of generic
prescription medication." The Plaintiffs seek recovery under
theories of fraud, unjust enrichment, and negligent
misrepresentation.

At its core, the Plaintiffs' case concerns Kroger's definition of
its "usual and customary" prices, which are used to calculate
copayments for insured customers. According to the National Council
for Prescription Drug Programs ("NCPDP"), "usual and customary"
means the "amount charged cash customers for the prescription
exclusive of sales tax or other amounts claimed." The Plaintiffs
allege that pharmacy benefit managers, following the NCPDP
definition, include "any discounts or special promotions," such as
"senior discounts, frequent shopper discounts and other special
discounts offered to attract customers," and exclude any membership
fees for savings clubs.

Since 2018, Kroger has offered an "Rx Savings Club" that "provides
deep discounts to cash purchasers on many commonly prescribed
generic drugs." Membership costs $36 per year for individuals or
$72 per year for families. That cost, however, is quickly eclipsed
by discounts as high as 80 or 90%. Some prescriptions even are
free. "Because these discounts are so attractive, most of Kroger's
cash-paying customers now pay the Savings Club price. In other
words, the Savings Club price is now the price at which Kroger
sells generic prescriptions to cash-paying customers as a usual and
customary matter." Yet, for customers with third-party insurance,
Kroger allegedly has failed to factor the Savings Club discounts
into its "usual and customary" prices, contrary to industry
standards.

As a result, Kroger charged copayments to each named Plaintiff that
exceeded the Savings Club price of the prescription. Plaintiff
Kirkbride was overcharged by $1.97 on one purchase, Plaintiff
Berger by $287.10 across 40 purchases, Plaintiff Hatfield by
$237.96 across 18 purchases, Plaintiff Mackert by $72.90 across 24
purchases, and Plaintiff Lewis by $71.91 across 5 purchases. Each
named Plaintiff alleges that he or she "paid the inflated
copayments with the understanding that the U&C usual and customary
price that Kroger reported to the Plaintiff and the NCPDP were the
actual U&C prices paid by cash-paying customers, and that the
copayments that Kroger charged the Plaintiff were based on an
accurate U&C price." Each also alleges they "would not have paid
the inflated copayments but for Kroger's wrongful conduct." "Put
another way, the gravamen of the action is that, contrary to
industry standards, Kroger deceived the Plaintiffs and class
members by reporting U&C prices above the prices available to
members of the Savings Club program (who are, by definition,
cash-paying customers), and then charging the Plaintiffs and the
class members inflated copayments."

Kroger moves to dismiss the Amended Complaint under Rules 9(b) and
12(b)(6). In the alternative, Kroger moves to dismiss or strike the
request for injunctive relief under Rules 12(b)(1) or 12(f), and to
strike the class allegations under Rule 23(d)(1)(D). After full
briefing, these matters stand ripe for adjudication.

In their response brief opposing dismissal, the Plaintiffs identify
three other class actions pending against national pharmacy chains
(not including Kroger) in federal courts across the country, all
concerning similar allegations of inflating "usual and customary"
prices relative to savings club prices.

As summarized below, each of these cases has proceeded beyond the
pleadings stage:

      1. Corcoran v. CVS Health Corp., Case No. 4:15-cv-03504 (N.D.
Cal.) partly survived dismissal on March 14, 2016. The case went to
trial in 2021, with a verdict for CVS.

      2. Forth v. Walgreen Co., Case No. 1:17-cv-02246 (N.D. Ill.)
largely survived dismissal on March 9, 2018. The case remains
pending.

      3. Stafford v. Rite Aid Corp., Case No. 3:17-cv-01340 (S.D.
Cal.) fully survived dismissal on September 28, 2018. The case is
stayed for mediation.

II. Discussion

A. Motion to Dismiss

As a preliminary matter, the Court notes that several of the
arguments raised in Kroger's Motion to Dismiss have been considered
in the parallel litigation, including Corcoran, Forth, and
Stafford. Kroger urges the Court to reject those "other U&C cases"
because they "were based on different laws and different facts
pled." Kroger is correct in one regard: none of those cases
controls the outcome in the case. Still, Kroger underestimates the
persuasive value of similar allegations tested, and mostly
sustained, in district courts across the country. To grant Kroger a
full dismissal would leave this case the sole outlier amongst the
eleven named in the Plaintiffs' response brief.

As such, where the applicable facts and legal standards compare to
the cases against other pharmacies, Judge Marbley intends to follow
the reasoned path set out in Corcoran, Forth, Stafford, and other
"U&C" cases. With that clarification, he begins its analysis of the
counts alleged.

a. Fraud

The Plaintiffs' fraud claim encompasses three distinct theories of
liability: "direct misrepresentations to the Plaintiffs in the form
of inflated copayments," "indirect misrepresentations to the
Plaintiffs by reporting the inflated U&C prices to NCPDP, which
Kroger knew would be relayed to them in the form of inflated
copayments," and "material omissions by failing to disclose the
true U&C prices."

Kroger's arguments for dismissal map onto these theories. Kroger
contends that: (1) the Plaintiffs have not alleged plausibly that
Kroger made misrepresentations, either to them or to a third-party;
(2) the Plaintiffs cannot state a claim for concealment because
Kroger had no duty of disclosure and did, in fact, publish its
"usual and customary" prices; and (3) the Plaintiffs' fraud
allegations fail under Rule 9(b).

Judge Marbley opines that the Plaintiffs' allegation that "Kroger
made misrepresentations to them and the class members each time it
charged them for copays that were calculated based on its inflated
U&C prices" is enough to ground a plausible theory of fraud by
direct misrepresentation. The Plaintiffs have pled Kroger's
misrepresentations sufficiently. So, they have viable fraud claims
under theories of both direct and indirect misrepresentations.

Next, Judge Marbley opines that the Kroger's publication of its
Savings Club prices online does not preclude it from fraudulently
omitting that information at the register. Therefore, the
Plaintiffs' fraud claims are viable under an omission theory as
well.

Lastly, Judge Marbley opines that Kroger frames the
misrepresentation theories as conflicting with the omission theory.
Yet, each theory is plausible and supported by specific allegations
in the Amended Complaint. Further, even supposing the Plaintiffs'
fraud theories are in conflict, alternate pleading is permitted by
Rule 8(d). The fraud claims may proceed as pled.

b. Unjust Enrichment

The Plaintiffs' next cause of action is for unjust enrichment.
Kroger urges dismissal on three grounds: (1) the Plaintiffs have
not met heightened pleading standards; (2) the "Plaintiff Kirkbride
has not pled a benefit conferred on Kroger"; and (3) Texas law
recognizes unjust enrichment as "a remedy, not a cause of action."

Judge Marbley already has rejected the first, it being an extension
of the particularity argument Kroger raised against the fraud
claims. Consequently, he proceeds directly to Kroger's second
argument. As pled, he finds that Plaintiff Kirkbride has conferred
a benefit on Kroger in the amount of her overcharge. He also finds
that even if the Court were to resolve the split as Kroger urges,
dismissal would not follow. Judge Marnley reserves for another day
the question of whether the Texas Plaintiffs' unjust enrichment
claims must be recast as "money had and received." Having rejected
each of Kroger's arguments, he determines that the unjust
enrichment claims may proceed for all the Plaintiffs.

c. Negligent Misrepresentation

The Plaintiffs' third and final cause of action is for negligent
misrepresentation. This claim, in contrast to the previous two, is
brought only by the Texas Plaintiffs. Two of Kroger's arguments for
dismissal were rejected: That the Plaintiffs failed to plead an
affirmative misrepresentation with particularity, and that any
misrepresentations Kroger made to a third party are not alleged to
have reached the Plaintiffs.

As to the remaining argument, concerning Kroger's duty of
disclosure, Judge Marbley finds that the balance of authority
before the Court holds that the Plaintiffs' corrective disclosure
theory is viable. "If the plaintiff's allegations can be proven,
then the defendants would have had a duty to correct what they had
represented to the plaintiff." The Plaintiffs are entitled to make
that attempt, so their negligent misrepresentation claims may
proceed.

d. Injunctive Relief

Kroger also moves to dismiss the request for injunctive relief
under Rule 12(b)(1), or to strike it under Rule 12(f). The Amended
Complaint does not allege that any named Plaintiff anticipates
filling future prescriptions at Kroger -- in contrast to Plaintiff
Kirkbride's explicit allegation in the Original Complaint. Thus,
Kroger argues, because the Amended Complaint does not plead a risk
of future injury, no Plaintiff has standing to seek an injunction.
In response, the Plaintiffs cede that "none of the Plaintiffs are
seeking injunctive relief." Rather than perform a full standing
inquiry on what appears to be an abandoned vestige of the Original
Complaint, Judge Marbley strikes the request for injunctive relief
-- specifically, items (g) and (h) of the Amended Complaint's
Prayer for Relief -- as "impertinent" under Rule 12(f).

B. Motion to Strike Class Allegations

Separately, Kroger moves to strike the class allegations in the
Amended Complaint pursuant to Rule 23(d)(1)(D). They contend that
all proposed classes are pled defectively and that discovery would
be futile.

a. Class Allegations under Rule 23(b)(1) and (b)(2)

First, Kroger moves to strike the class allegations pertaining to
Rule 23(b)(1) or (b)(2), specifically those appearing in Paragraph
37 of the Amended Complaint. The Plaintiffs' response brief waives
opposition and indicates that they intend to seek certification
only under Rule 23(b)(3). As such, it is proper to strike Paragraph
37.

b. Class Allegations under Rule 23(b)(3)

All remaining class allegations in the Amended Complaint pertain to
Rule 23(b)(3). Kroger contends that, for each cause of action,
"individual questions of fact would overwhelm any common
questions," making a class action "inferior and unmanageable." It
advances its arguments in two parts: First against the fraud and
negligent misrepresentation counts, then against the unjust
enrichment count.

Judge Marbley opine that individual questions of reliance and
damages are not a certain barrier to certification of the fraud and
negligent misrepresentation claims. Absent a "central defect in
this class claim," "he deems it prudent to assess the propriety of
class certification in the context of a fully briefed class
certification motion rather than in the context of a motion to
strike class claims at the pleading stage."

Judge Marbley also fails to see a "central defect" that would
preclude class treatment of the unjust enrichment claim. He
therefore declines Kroger's invitation to strike the class
allegations at this early stage.

C. Nationwide Class

In the alternative, Kroger moves to strike the nationwide class
allegations, arguing that differences among the states' laws on
fraud, negligent misrepresentation, and unjust enrichment would
make a nationwide class unmanageable. It observes (and the
Plaintiffs do not contest) that Ohio's choice-of-law factors favor
applying "the consumer-protection laws of the potential class
members' home States where the protected consumers lived and where
the injury occurred." In response, the Plaintiffs emphasize that
the nationwide class is "simply a placeholder," which "'may be
modified or narrowed by an amended complaint, or at class
certification, including through the use of multi-state subclasses
to account for material differences in state law, if any.'"

Judge Marbley opines that Kroger's concerns about the burden of
nationwide discovery are not lost on the Court. Nevertheless, they
counsel for a careful plan of discovery management, not for
preemptively striking dozens of states in which viable subclasses
still might be formulated. As such, Judge Marbley "permits the
Plaintiffs to commence discovery, but notes that their discovery
should be aimed toward refining the class definition such that the
Court may determine the certification question as soon as is
practicable."

III. Conclusion

For the reasons stated, Judge Marbley denied the Defendant's Motion
to Dismiss, except as to the Plaintiffs' request for injunctive
relief, which is stricken. He denied the Defendant's Motion to
Strike Class Allegations, except as to Paragraph 37 of the Amended
Complaint, which is stricken. The denial of the Motion to Strike is
without prejudice to renewal following a period of class discovery
or in opposition to class certification. In the interim, the case
may proceed as a putative class action on all counts alleged.

A full-text copy of the Court's July 12, 2022 Opinion & Order is
available at https://tinyurl.com/5t7z6z98 from Leagle.com.


LAKE POINTE: Order on Church Mutual's Duty to Defend Affirmed
-------------------------------------------------------------
In the case, CHURCH MUTUAL INSURANCE COMPANY, Plaintiff-Appellant
v. LAKE POINTE ASSISTED LIVING, INC.; TONY BIGLER; EDITH BIGLER;
LAURA WISE, Administrator for the Estate of Martha A. Reinert;
BARBARA FOX PARKER; JERRY SINGLETARY, Defendants-Appellees, Case
No. 21-1668 (4th Cir.), the U.S. Court of Appeals for the Fourth
Circuit affirms the district court's final judgment that Lake
Pointe's policy obligated its insurer -- Church Mutual Insurance
Co. -- to defend Lake Pointe or its officers in the state-court
action.

I. Overview

Lake Pointe operates an adult care home. The home's residents sued
Lake Pointe and two of its officers in North Carolina state court,
alleging that they failed to provide adequate meals and activities,
in violation of North Carolina's administrative code.
Church Mutual sought a declaratory judgment in federal court that
it needn't defend Lake Pointe or its officers in the state-court
action. The district court held that Lake Pointe's insurance policy
obligated Church Mutual to tender a defense. The court entered a
final judgment on that issue, certifying it for our review.

Because the policy requires Church Mutual to defend Lake Pointe
when a "professional health care incident" causes residents'
injuries, the Fourth Circuit affirms.

II. Background

Church Mutual issued Lake Pointe a Primary Policy and an Umbrella
Policy that covered Lake Pointe from May 2018 to January 2019.
Among other things, the policies insured against damages caused by
a "professional health care incident." The policies define
"professional health care incident" (in part) as the "failure to
comply with any right of a resident under any state or federal law
regulating Lake Pointe as a resident health care facility."

In November 2018, Lake Pointe residents filed a class action in
North Carolina state court against Lake Pointe and its officers --
Tony and Edith Bigler. The complaint (as amended) asserts two
claims against Lake Pointe -- breach of contract and a violation of
the North Carolina Unfair and Deceptive Trade Practices Act under
N.C. Gen. Stat. Section 75-1.1. It also alleges that the Biglers
negligently managed the adult care home. The residents claim that
Lake Pointe and the Biglers caused them "solely economic damages"
by failing to provide them with nutritious meals, assistance with
day-to-day activities, and adequate programming, as required by
North Carolina law.

Church Mutual later sued Lake Pointe, the Biglers, and the
residents in federal court, seeking a declaration that it needn't
defend or indemnify its insureds.1 Lake Pointe, the Biglers, and
the residents all counterclaimed for declaratory judgment and
unfair trade practices. Lake Pointe and the Biglers also alleged
breach-of-contract and duty-of-good-faith claims.

Church Mutual moved for judgment on the pleadings on all claims.
The district court granted the motion as to the residents'
counterclaim alleging unfair trade practices. But it otherwise
denied the motion, holding that Church Mutual has a "duty to defend
on all claims asserted against the Lake Pointe Defendants in the
Underlying Lawsuit."

The district court found that the Primary Policy covered: (1) an
injury, (2) caused by (3) a professional health care incident. The
court said that the residents' alleged economic losses constituted
injuries. And it found that the residents adequately pleaded
causation because Lake Pointe's actions produced their injuries.

The district court also found that a "professional health care
incident" caused the residents' injuries. The Primary Policy
defined a "professional health care incident" (in part) as a
"failure to comply with any right of a resident under any state or
federal law regulating Lake Pointe as a resident health care
facility." The court noted that neither the policy nor North
Carolina law defined "resident health care facility." But North
Carolina law did define "health care facility" and included within
that definition "adult care homes." Because the complaint alleged
that Lake Pointe is an adult care home, the court applied the
corresponding regulations.

Examining those regulations, the court found detailed requirements
for meals and group activities. It then compared those requirements
to the amended complaint's allegations that Lake Pointe and the
Biglers "failed to ensure that the facility materially and
routinely complied with the applicable laws, rules, and regulations
related to the operation of a licensed adult care home." The
amended complaint, the district court said, sufficiently alleged
violations of the regulations. And those violations, if proven,
would amount to "a professional health care incident" under the
policies.

Thus, the court found that Church Mutual had a duty to defend Lake
Pointe and the Biglers. Then, because several counterclaims
remained live, Church Mutual moved to certify the duty-to-defend
order as a final, appealable judgment under Federal Rule of Civil
Procedure 54(b). The district court granted Church Mutual's motion,
reasoning that it had issued a final judgment on that claim and
resolving the issue would propel the matter forward.

The appeal followed.

III. Discussion

A.

The district court issued a final order on the declaratory-judgment
claims. The court found that Church Mutual has a "duty to defend on
all claims asserted against Lake Pointe and the Biglers in the
North Carolina action." Because that claim has reached its
"ultimate disposition," it is final. Nor is there any just reason
for delay. The Fourth Circuit's decision will inform the district
court's opinion on the remaining counterclaims. The district court
has suggested that, if the Fourth Circuit were to reverse, its
opinion would moot those counterclaims. The Fourth Circuit has
treated comparable findings as sufficient for Rule 54(b)
certification.

B.

Turning to the merits, the Fourth Circuit reviews a district
court's ruling on a motion for judgment on the pleadings de novo.
Judgment on the pleadings is appropriate where no set of facts
would entitle the nonmovant to relief. The parties agree that North
Carolina law governs their dispute. North Carolina uses a
"comparison test" to define an insurance policy's scope. Courts
conduct the comparison test by "reading the policies and the
complaint side-by-side to determine whether the events as alleged
are covered or excluded."

"In determining whether an insurer has a duty to defend, the facts
as alleged in the complaint are to be taken as true and compared to
the language of the insurance policy." "If the insurance policy
provides coverage for the facts as alleged, then the insurer has a
duty to defend." Since it is examining a provision that extends
coverage, the Fourth Circuit must construe it "liberally so as to
afford coverage whenever possible by reasonable construction."

C.

The Primary Policy compels Church Mutual to defend Lake Pointe
against any suit seeking a sum that Church Mutual must pay. But
Church Mutual needn't defend Lake Pointe against suits "to which
its insurance does not apply." So Church Mutual's duty to defend
turns on whether the residents allege damages for which Church
Mutual insured Lake Pointe.

The insurance policy's plain language controls its scope. Church
Mutual's policy insured Lake Pointe against (1) an "injury"; (2)
"caused by"; (3) a "`professional health care incident.'" So the
Fourth Circuit agrees with the district court that the residents'
complaint must allege those three requirements to impose a duty to
defend on Church Mutual.

First, it finds that the complaint alleges that the residents
suffered economic damages. So it alleges an injury under the
ordinary sense of the word. Church Mutual doesn't meaningfully
challenge this conclusion. Thus, the district court correctly
determined that purely economic damages are an "injury" under the
policies.

Second, considering whether the residents' injuries were "caused
by" a professional health care incident, the Fourth Circuit holds
that the district court correctly found causation. It finds that
the residents' injuries were in fact caused by a professional
health care incident.

Third, finally turning to the policies' third requirement: that "a
professional health care incident" caused the injury, the Fourth
Circuit holds that because the residents allege that Lake Pointe
and the Biglers violated state law regulating Lake Pointe as a
resident health care facility, they have alleged a professional
health care incident.

IV. Conclusion

Reading the policies and the amended complaint together, the Fourth
Circuit concludes that the residents have pleaded an injury caused
by a professional health care incident. Thus, the district court
correctly held that Church Mutual had a duty to defend the Lake
Pointe Defendants in the state court litigation. Accordingly, it
affirms.

A full-text copy of the Court's July 12, 2022 Order is available at
https://tinyurl.com/y44e8znr from Leagle.com.

ARGUED: Christian Andrew Preus -- cpreus@bassford.com -- BASSFORD
REMELE, P.A., in Minneapolis, Minnesota, for the Appellant.

David Stebbins Coats -- dcoats@bdixon.com -- BAILEY & DIXON, in
Raleigh, North Carolina, for the Appellees.

ON BRIEF: Walter E. Brock, Jr. -- Walter.Brock@youngmoorelaw.com --
YOUNG, MOORE & HENDERSON, P.A., in Raleigh, North Carolina, for the
Appellant.

J.T. Crook -- jcrook@bdixon.com -- BAILEY & DIXON, LLP, in Raleigh,
North Carolina, for Appellees Lake Pointe Assisted Living, Inc.,
Tony Bigler, and Edith Bigler. J. David Stradley , WHITE &
STRADLEY, LLP, Raleigh, North Carolina, for Appellees Laura Wise,
Administration for the Estate of Martha A. Reinert, Barbara Fox
Parker and Jerry Singletary.


MANHATTAN PARKING: $306K in Fees & Costs Awarded in De La Cruz Suit
-------------------------------------------------------------------
In the case, CARLOS MARTIN DE LA CRUZ, et al., Plaintiff v.
MANHATTAN PARKING GROUP LLC, et al., Defendants, Case No. 20-CV-977
(BCM) (S.D.N.Y.), Magistrate Judge Barbara Moses of the U.S.
District Court for the Southern District of New York awards the
Class Counsel $300,000 in attorneys' fees and $6,360.74 in
expenses.

I. Introduction

Plaintiff Carlos Martin de la Cruz, who brought this wage and hour
action on behalf of himself and others similarly situated, now
seeks judicial approval of a $1.2 million settlement that will
benefit approximately 1600 parking attendants, cashiers, and other
workers at parking garages throughout the New York City area. On
March 16, 2022, the Plaintiff filed a Motion for Certification of
the Settlement Class, Final Approval of the Class Action Settlement
and Approval of the FLSA Settlement, a Motion for Approval of
Service Award, and a Motion for Approval of Attorneys' Fees, Costs
and Expenses, and Administration Fees, none of which were opposed.

By separate order (Final Approval Order), Judge Moses has granted
the Motion for Final Approval, granted the Motion for Service
Award, and granted in part the Motion for Attorneys' Fees and
Administration Fees, to the extent of approving the requested fees
to be paid to the Settlement Administrator. She now turns to the
portion of the fee motion that seeks approval of $400,000 in
attorneys' fees and $6,360.74 in expenses, to be paid to the Class
Counsel out of the Gross Settlement Fund.

II. Background

Named Plaintiff de la Cruz filed this action on Fed. 5, 2020,
alleging violations of the Fair Labor Standards Act of 1938 (FLSA)
and the New York Labor Law (NYLL). The Plaintiff sued 12 named
entities and individuals, as well as "John Doe Entities 1-100,"
alleging that the Defendants own and operate over 100 parking
facilities throughout the New York City area, and that, due to
their "timekeeping and payroll practices," they failed to pay their
parking attendants, car washers, cashiers, and other laborers for
all of the hours that they worked, or all of the overtime
compensation due to them.

The Plaintiff principally alleged that he and others similarly
situated were not paid for the first hour of their scheduled shift
if they clocked in more than ten minutes late; were not paid for
any late work unless they worked an entire hour past the end of
their scheduled shift; were docked 30 minutes each day for their
break, but were nonetheless required to be "on call" during their
entire shift; and were not paid spread-of-hours compensation when
they worked more than ten hours in one day. As a result, the
Plaintiff alleged, he and others similarly situated "routinely"
worked five to ten hours per week for which they were not paid,
which not only deprived them of straight time pay for those hours
but also deprived them of overtime pay in weeks when their total
hours exceeded 40.

After the Defendants answered, the parties served written discovery
requests and "conferred about the possibility of settlement." After
they produced "a sampling of time and pay records for certain
putative class members," which the Plaintiff's counsel reviewed and
analyzed, the parties engaged in settlement discussions,
culminating in a formal mediation on Dec. 1, 2020.

On Jan. 4, 2021, the parties entered into the First Settlement
Agreement, and on Jan. 21, 2021, the Plaintiff sought preliminary
approval of its terms. Under the First Settlement Agreement, the
Defendants obligated themselves to create a Gross Settlement Fund
of $1.2 million to settle the claims of up to 1,650 Class Members
(to be increased proportionally if the total number of Class
Members exceeded 1,650). After deducting any Court-approved service
awards, attorneys' fees and expenses, and administration fees, the
Net Settlement Amount would be allocated to the Class Members in
proportion to the amount of time that each of them worked for the
Defendants. However, in order to become an Authorized Claimant (and
receive a check), a Class Member would be required to execute and
return a "complete and valid tax form as determined by the
Settlement Administrator." Settlement funds allocated to the Class
Members who failed to return tax forms would revert to the
Defendants.

By Order dated July 12, 2021, Judge Moses asked the parties to
address certain issues arising from the settlement terms initially
submitted, including the terms summarized. She was concerned that
requiring the Class Members to complete and return tax forms, as a
predicate to receiving relatively modest settlement checks, could
significantly depress the number of Class Members who ultimately
became Authorized Claimants, which in turn would result in a
potentially significant portion of the Net Settlement Amount
reverting to the Defendants. In response, the parties informed the
Court that they intended to return to mediation and renegotiate.
Judge Moses then denied the Plaintiff's preliminary approval motion
without prejudice to refiling after the mediation.  
On Sept. 15, 2021, the parties entered into the Addendum, which --
among other things -- eliminated the requirement that the Class
Members submit new tax forms to become Authorized Claimants. Thus,
after allocation, the entire Net Settlement Amount will be paid to
the Class Members in proportion to the amount of time each of them
worked for the Defendants. The only settlement funds that will
revert to defendants are Settlement Checks not cashed or deposited
within 180 days of mailing.

On Sept. 17, 2021, the Plaintiff filed a renewed motion for
preliminary approval of the settlement contemplated by the Revised
Settlement Agreement. On Nov. 16, 2022, Judge Moses granted the
motion and entered an order (the Preliminary Approval Order)
preliminarily approving the Settlement; provisionally certifying an
opt-out Class pursuant to Fed. R. Civ. P. 23(e); appointing the
Named Plaintiff as representative of Class; approving the sending
of a Notice to Class Members pursuant to Fed. R. Civ. P. 23(e) and
the FLSA, 29 U.S.C. Section 216(b); appointing the Named
Plaintiff's counsel, Lee Litigation Group, PLLC (LLG), as the Class
Counsel; and appointing Arden Claims Service as the Settlement
Administrator.

The Class, as provisionally certified (and as now finally
certified), includes all hourly parking attendants, cashiers, and
other non-exempt workers, who were employed by Defendants at any
time between Feb. 5, 2014 and Nov. 16, 2021.

On Dec. 7, 2021, Arden mailed the Notice (in English and Spanish)
to a list of 1,608 Class Members. About 309 Notices were returned
as undeliverable, after which Arden conducted skip traces and was
ultimately able to re-mail 247 of the 309, thereby notifying a
total of 1,515 of the 1,608 Class Members. Eighteen Class Members
opted out of the Settlement. No Class Member objected to the
Settlement.

On March 16, 2022, the Plaintiff filed the Motion for Final
Approval, Motion for Approval of Service Award, and Motion for
Approval of Attorneys' Fees, and on May 2, 2022, the Court held a
Fairness Hearing. As noted, the only item left for determination is
the amount of fees and expenses to be awarded to the Class
Counsel.

III. Analysis

In Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47 (2d Cir.
2000), the attorneys responsible for creating a class action
settlement fund are "entitled to a reasonable fee -- set by the
Court -- to be taken from the fund." In the Second Circuit, courts
ordinarily use a "percentage-of-the-fund" method to determine a
reasonable fee for the class counsel. As a "cross-check" on the
reasonableness of the percentage selected, courts appropriately
apply the "lodestar" approach, "under which the district court
scrutinizes the fee petition to ascertain the number of hours
reasonably billed to the class," "multiplies that figure by an
appropriate hourly rate," and then, in its discretion, applies a
"multiplier" to the total if warranted.

Regardless of which method is used, the reasonableness of the fee
award is analyzed under the Goldberger factors: "(1) the time and
labor expended by counsel; (2) the magnitude and complexities of
the litigation; (3) the risk of the litigation; (4) the quality of
representation; (5) the requested fee in relation to the
settlement; and (6) public policy considerations." When using the
percentage-of-the-fund approach, courts apply these factors "in
three steps."

First, "the Court determines a baseline reasonable fee percentage
in relation to the settlement, using common fund settlements of
similar magnitude and complexity as guidance." Second, "the Court
considers the remaining Goldberger factors," including the risk to
Class Counsel, the quality of representation, and other public
policy concerns, "to determine the precise percentage of the
settlement fund to award." Third, "the Court applies the lodestar
method as a cross-check, considering the amount of time reasonably
spent by Class Counsel and the hourly rate charged."

In the present case, Judge Moses concludes that the $400,000 sought
by the Class Counsel is too high and that a fee award of $300,000,
representing 25% of the Gross Settlement Fund, is more reasonable.
She finds that (i) 25% of the Gross Settlement Fund is a
"reasonable baseline figure"; (ii) no deviation from the baseline
fee is warranted, in the case, based on public policy
considerations; and (iii) the $300,000 award implies a multiplier
of approximately 3.31, which, although on the high side, is not so
unreasonable as to require a further reduction in Class Counsel's
fees.

The Class Counsel also seeks costs and expenses in the amount of
$6,360.74. These expenses include "filing fees, investigation fees,
mediation fees, translation fees, and travel expenses." Then Class
Counsel is "entitled to reimbursement of reasonable litigation
expenses from the settlement fund when the expenses are 'necessary
and were directly related to the results achieved.'" Judge Moses
finds these expenses reasonable.

IV. Conclusion

For the foregoing reasons, Judge Moses grants in part the Motion
for Attorneys' Fees and Administration Fees, to the extent that the
Class Counsel is hereby awarded attorneys' fees of $300,000 and
reimbursement of expenses in the amount of $6,360.74, for a total
of $306,360.74, to be paid by or on behalf of the Defendants, from
the Settlement Fund, according to the terms of the Settlement
Agreement.

A full-text copy of the Court's July 12, 2022 Opinion & Order is
available at https://tinyurl.com/2p9fjtcc from Leagle.com.


MUNICIPAL CREDIT: Court Tosses Thompson Class Suit With Prejudice
-----------------------------------------------------------------
In the case, ELSA THOMPSON, individually and on behalf of all
others similarly situated, Plaintiff v. MUNICIPAL CREDIT UNION,
Defendant, Case No. 21-cv-7600 (LJL) (S.D.N.Y.), Judge Lewis J.
Liman of the U.S. District Court for the Southern District of New
York grants Municipal Credit's motion to dismiss the Plaintiff's
breach of contract claim.

I. Background

Plaintiff Thompson is a citizen of Florida and a customer of
Defendant Municipal Credit Union, where she maintains a FasTrack
Checking Account. Defendant Municipal Credit Union is a credit
union with its headquarters and principal place of business in New
York.

The Plaintiff brings the case as a putative class action alleging
that the Defendant's practice of assessing multiple fees on an item
that was authorized for payment only a single time constitutes a
breach of its account agreement (the "Contract") with its checking
account customers. The Plaintiff's Contract is comprised of an
Account Agreement and Regulations and a Schedule of Dividends,
Service Charges, and Fees ("Fee Schedule"). The Account Agreement
details the rules and regulations for multiple different types of
accounts that Defendant offers, including but not limited to
FasTrack Checking Accounts. The Fee Schedule sets forth the
dividends, service charges, and fees, and (where applicable)
penalties for each of the different types of accounts offered by
the Defendant. The Account Agreement incorporates the Fee Schedule
by reference.

The issue in the case arises as a result of how ACH (or Automated
Clearing House) transactions are conducted. Several parties are
involved in an ACH transaction, which may occur when a person seeks
to make a bill payment online or effect a financial transaction
through a service like PayPal. The "Receiver" is the customer who
authorizes a transaction to be conducted through the ACH network by
directing that a bill be paid or money be transferred. The
individual merchant with whom the Receiver or customer does
business (the "Originator") then forwards the transaction, through
the Federal Reserve System, to the Receiver or customer's bank (the
"Receiving Depository Financial Institution" or "RDFI") so that the
customer's account can be debited. Rules exist regarding how often
the third-party merchant, having been directed to effect a
transaction on behalf of the customer, can present the debit
request to the customer's bank for payment after that request has
been returned for insufficient funds. Thus, "merchants or payees
may present an item multiple times for payment if the initial or
subsequent presentment is rejected due to insufficient funds or
other reason (representment)."

The Plaintiff alleges that each time a third-party merchant or bank
presents to the Defendant for payment a debit request or bill
payment or check that she has drawn, the Defendant charges her a
separate fee. Thus, when the Defendant reprocesses an electronic
payment item, ACH item, or check for payment after it is initially
rejected for insufficient funds and without a new authorization
from the consumer, the Defendant treats that reprocess request as a
new transaction subject to a new fee.

The Plaintiff alleges that the burden of the NSF fees "falls
disproportionately on racial and ethnic minorities, the elderly,
and the young, many of whom regularly live paycheck to paycheck and
therefore carry low bank account balances" and that Defendant makes
millions of dollars annually from the practice. She alleges that
overdraft fees and NSF fees are among the primary fee generators
for banks. Although the complaint is laced with language describing
the practice as "abusive," and "deceptive," the Plaintiff's action
is one for breach of contract. She alleges that the Defendant's NSF
fee practice violates the terms of the parties' contract.

The Plaintiff alleges that the contract provisions constitute an
explicit promise that an NSF fee will only be assessed once for a
single ACH debit request and that the Defendant has violated the
express terms of the contract by charging multiple fees for one
request.

The Plaintiff filed the complaint on Sept. 10, 2021. The Defendant
moved to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6) on Dec. 29, 2021. That same day, it filed
a memorandum of law in support of its motion. The Plaintiff filed a
response in opposition to the motion on Feb. 4, 2022. The Defendant
filed a reply on Feb. 25, 2022. In her response, the Plaintiff
noted that she is no longer pursuing her claim for breach of the
covenant of good faith and fair dealing. Thus, the Court only
considers the motion to dismiss the claim for breach of contract.

II. Discussion

To state a claim for breach of contract under New York Law, a
plaintiff must satisfy four elements: (1) the existence of an
agreement; (2) adequate performance of the contract by the
plaintiff; (3) breach of contract by the defendant; and (4)
damages. The Defendant argues that the Plaintiff has failed to
plead facts establishing a breach of contract by the Defendant.

The Plaintiff rests her claim on the "NSF Fee" provision of the
FasTrack Section of the Fee Schedule and the "NSF Fee" provision
contained in the "Other Fees and Charges" section of the same
document. She alleges that these provisions must be "taken
together." She alleges that reading the two provisions together,
"the Contract promises that a fee will be assessed on an 'item,'
which relates to the consumer's authorization of an ACH debit
request or the consumer's action of drawing a check." Thus, as she
reads the Contract, the Defendant is entitled to extract only a
single fee for each authorization by a consumer of an ACH debit
request or each check drawn by a consumer. She alleges that the
Defendant "breached the Contract when it charged more than one fee
per item."

The Defendant reads the Contract differently. It argues first that
the "per item" language describing the NSF Fee does not apply at
all to the Plaintiff's account or to any FasTrack Account because
that language is contained in a provision that describes "Other
Fees and Charges" and the FasTrack section of the Fee Schedule
already describes the NSF Fee applicable to that account. Second,
the Defendant argues that even if the provision in the "Other Fees"
section applied to FasTrack accounts, it would permit Municipal
Credit to charge an additional fee each time a debit request was
presented for payment and returned as unpayable. It contends that
the "per item" language upon which the Plaintiff hangs her hat
refers to the presentment of a debit request or bill payment or
check for payment by the third-party merchant or its bank and not
the initial authorization by the customer.

Applying New York contract law principles, Judge Liman opines it is
evident that the section regarding NSF Fees in the "Other Fees and
Charges" section does not apply to FasTrack Checking Accounts.
Thus, the reference to "per item" is not applicable to FasTrack
accounts. The Court need not consider whether the "per item"
language is ambiguous. The NSF language applicable to FasTrack
Checking Accounts is unambiguous and permits the Defendant to
assess a new fee each time a debit request or check is presented
for payment, regardless whether that same debit request or check
previously has been presented for payment and rejected for
insufficient funds.

Moreover, Judge Liman opines that the language makes clear that the
account holder is at risk for multiple charges based on multiple
presentments. The failure to include more express language of the
parties' intent does not automatically create ambiguity in a
contract. Municipal Credit's language is clear and unambiguous and
permitted the conduct at issue. No more is required.

This result admittedly may seem harsh. The only issue before the
Court is one of private contract law -- whether the Plaintiff
agreed in the Contract to permit the Defendant to impose a new NSF
charge each time a debit request is presented for payment and
returned for not sufficient funds. She did. Accordingly, her breach
of contract claim must be dismissed.

Lastly, Judge Liman says district courts may dismiss a claim
without leave to amend when amendment would be futile. Amendment
would be futile if an amended claim would not withstand a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). When the
plain language of a contract unambiguously forecloses a plaintiff's
claim, a district court may determine that re-pleading would be
futile. This is the case here, Judge Liman holds.

III. Discussion

Judge Liman grants the motion to dismiss. He dismisses the
Plaintiff's complaint with prejudice.

The Clerk of Court is respectfully directed to close Dkt. Nos. 26
and 38 and to close the case.

A full-text copy of the Court's July 12, 2022 Opinion & Order is
available at https://tinyurl.com/56a3rdvh from Leagle.com.


NOOM INC: $56-Mil. Class Settlement in Nichols Suit Wins Final OK
-----------------------------------------------------------------
In the case, MOJO NICHOLS, SUSAN BREWSTER, DUANE DEA, MARYANNE
DERACLEO, KAREN KELLY, REBECCA RICHARDS, JENNIFER SELLERS, and
STACY SPENCER, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs v. NOOM, INC., ARTEM PETAKOV, and JOHN DOES 1
TO 5, Defendants, Case No. 20-CV-3677 (KHP) (S.D.N.Y.), Magistrate
Judge Katharine H. Parker of the U.S. District Court for the
Southern District of New York issued an Opinion and Order granting
the Plaintiffs':

   a. unopposed motion for (i) Certification of the Settlement
      Class, (ii) Final Approval of the Class Action Settlement,
      (iii) finding notice was the best practicable under the
      circumstances; (iv) service awards to the Class
      Representatives, (v) Class Counsel reimbursement of
      attorneys' fees and costs; (vi) approving the parties'
      proposed final settlement procedure, (vii) incorporating
      the terms of the Settlement Agreement, and (viii)
      dismissing the action with prejudice; and

   b. related and unopposed motion to approve their cy pres
      recipient designations.

I. Background

On May 12, 2020, the Plaintiffs filed a Class Action Complaint
against the Defendants. They subsequently amended their Complaint
an additional four times. The Plaintiffs and the Class Members are
consumers from across the United States who were charged for an
autorenewing subscription to Noom's Healthy Weight diet program.
The Plaintiffs allege that Noom's enrollment, autorenewal, and
cancellation practices violated, inter alia, California's Automatic
Purchase Renewal Statute, Cal. Bus. & Prof. Code Section 17600, et
seq. (the "ARL"), New York's General Business Law Section 349 ("GBL
Section 349"), and the common law.

On Feb. 12, 2021, in lieu of answering the complaint, the
Defendants filed a motion to dismiss the third amended complaint.
On Aug. 5, 2021, the Hon. Lorna G. Schofield dismissed the causes
of action asserting conversion under New York, Ohio, Texas, Alabama
and District of Columbia law; and also dismissed the portion of the
Plaintiffs' California Unfair Competition Law claim (i.e., Count
Four), stemming from California's Bot Disclosure Law (Cal. Bus. &
Prof. Code Section 17941). However, the Defendant's motion to
dismiss was denied as to all other causes of action.

Discovery began on July 9, 2020. On Dec. 18, 2020, the parties
engaged mediator Judge Edward Infante (Ret.) to hold a full-day
mediation; however, the parties failed to reach a resolution.
Beginning in the spring of 2021, the parties shifted settlement
discussions to the undersigned. Judge Parker held a two-day
mediation on Sept. 13-14, 2021, whether the parties ultimately
reached an agreement in principle on certain material terms and
executed a term sheet. The parties then spent the period from
mid-September 2021 to Jan. 20, 2022, negotiating final terms. On
Nov. 15, 2021, Judge Parker ordered a stay of discovery for the
parties to continue the settlement discussions. The parties
ultimately held an additional eight conferences before executing
the Settlement Agreement. On Jan. 25, 2022, the parties represented
that they reached a settlement in principle and Judge Parker
extended the stay of discovery for six months for the parties to
finalize the agreement.

On Feb. 11, 2022, the Plaintiffs filed a fourth amended complaint.
On the same day, they filed a motion for preliminary approval of
the class action settlement. The parties' proposed settlement
resolves all claims in the action. On Feb. 23, 2022, the Court
granted the Plaintiffs' unopposed motion for preliminary approval
of the class action settlement, provisionally certified the
settlement class, approved the appointment of class counsel and
class representatives, and approved the notice plan and related
procedures.

Judge Parker held a final approval hearing on July 11, 2022. At the
hearing, she heard oral argument on the overall fairness of the
proposed settlement agreement from both a procedural and
substantive standpoint, as well as argument about the application
for fees, costs, and service awards.

The proposed Settlement Agreement defines the Settlement Class as:
All natural persons who purchased a Noom Healthy Weight
Subscription in the United States via the Noom website or mobile
app from May 12, 2016 to Oct. 6, 2020 and who (i) were charged by
Noom for a Healthy Weight Subscription and (ii) did not receive a
full refund or chargeback of all Noom Healthy Weight Subscription
charges.

For the avoidance of doubt, persons who purchased a Noom Healthy
Weight Subscription via the Apple App Store or Google Play Store
are excluded from the Settlement Class. Additionally, the following
entities and individuals are not Class Members: (a) Noom and any
and all of its predecessors, successors, assigns, parents,
subsidiaries, affiliates, directors, officers, employees, agents,
representatives, and attorneys, and any and all of the parents',
subsidiaries', and affiliates' present and former predecessors,
successors, assigns, directors, officers, employees, agents,
representatives, and attorneys; (b) any judicial officer presiding
over the Action, or any member of his or her immediate family or of
his or her judicial staff; and (c) any Excluded Class Member.

Under the Settlement Agreement, Noom will deposit $56 million into
a non-reversionary fund ("Settlement Fund"). This amount is
comprised of $46 million for Subclass A and $10 million for
Subclass B. Subclass A consists of all Class Members who either (i)
never enrolled in Noom, (ii) enrolled but never engaged, (iii)
engaged during the trial but not thereafter, (iv) engaged two times
or fewer post-trial, (v) had zero engagement after day 58 of their
subscription, (vi) received a partial refund of any payments for
the Healthy Weight Subscription, or (vii) any other Class Member
who is a resident of California. Subclass B consists of all Class
Members who are not part of Subclass A. The difference in the
payment amounts reflects the strength of the Class Members' claims.
Cash payments will be distributed to Class Members in proportion to
the amounts they paid Noom.

In addition, Noom will distribute 100,000 free one-month
(non-recurring) Healthy Weight memberships to the first 100,000
Subclass B members who request a credit when they submit their
claim. This credit, valued at $60 each, is in addition to any cash
award and will not reduce the cash payments.

The average estimated cash payment to Class Members in Subclass A
is approximately $167. These consumers paid Noom on average $224.
The average estimated payment to the Class Members in Subclass B is
approximately $30, before accounting for any membership credits.
These consumers paid Noom on average $228. These payment formulas
track the Plaintiffs' damages model used at mediation such that the
Class Members will be fairly compensated based on alleged damages.

The settlement also provides robust business practice changes that
will prevent the Class Members' future unintended purchases and
provides additional safeguards by ensuring that any autorenewing
subscription is entered into following informed affirmative consent
and that subscriptions are easily cancelled. The Class members will
receive reminders about upcoming charges and clearer instructions
about how to cancel a subscription. Some of these changes are not
required by law, but Noom has agreed to adopt them, positioning
itself as a leader in improved transparency for online
transactions. Lastly, for the Class Members with active
subscriptions that did not use Noom in the twelve months following
their conversion to full-fledged customers, Noom is barred from
continuing to charge these consumers unless the Class Member
expressly consents to renewal after being plainly and prominently
advised that additional charges will not occur absent this
consent.

In exchange, the Plaintiffs, each Class Member, and the Defendants
will fully release and discharge each other from all claims arising
out of or relating to the action that accrued between May 12, 2016
and the date of the Preliminary Approval Order, and that were
asserted or could have been asserted in the action or the related
state court actions.

The parties also jointly selected Angeion Group as the Settlement
Administrator to disseminate notice to the Class and administer
distribution of the settlement benefits. As part of this bidding
process, the parties requested capped bids such that the risk of
administration costs will be borne by the administrator and not the
class. Angeion Group estimated its costs for administration at
approximately $700,000, but agreed to cap its costs at $635,000.

II. Discussion

A. Class Certification

For purposes of settlement, Judge finds that the Class is suitable
for certification, in that it satisfies all applicable requirements
of Fed. R. Civ. P. 23(a) and (b)(3).

Rule 23(a) imposes four threshold requirements for certification of
a class action: (1) numerosity ("the class is so numerous that
joinder of all members is impracticable"); (2) commonality ("there
are questions of law or fact common to the class"); (3) typicality
("the claims or defenses of the representative parties are typical
of the claims or defenses of the class"); and (4) adequacy of
representation ("the representative parties will fairly and
adequately protect the interests of the class").

Judge Parker finds that (i) insofar as the parties calculate that
there are approximately two million class members, the proposed
class satisfies the numerosity requirements of Rule 23; (ii) the
common questions of law and fact in this case all relate to whether
the Defendants engaged in fraudulent, unfair, unlawful, and
deceptive business practices related to the autorenewal and
cancelation of subscriptions; (iii) typicality is easily met where
all the Class Members were "exposed to the same marketing and will
have almost entirely the same claims with at most 'minor
variations' in the facts surrounding their purchase; (iv) because
the class representatives are adequate and do not have any
interests that are different from or adverse to the Class Members,
they will fairly and adequately protect (and have fairly and
adequately protected) the interests of the Class Members; and (v)
the class counsel is qualified insofar as (a) Wittels McInturff
Palikovic attorneys have extensive experience in prosecuting
complex consumer and employment class actions; (b) the lead
attorney prosecuting the case, Steven L. Wittels, was one of the
lead trial counsel in the largest class action jury verdict in the
history of employment discrimination litigation; and (c) the
co-counsel firms Chimicles Schwartz Kriner & Donaldson-Smith LLP
and Bramson, Plutzik, Mahler & Birkhaeuser have presented
information about their legal bona fides and experience in complex
and class litigation.

In addition to satisfying the Rule 23(a) requirements,
certification must be appropriate under Rule 23(b). "Certification
under Rule 23(b)(3) requires both that (1) questions of law or fact
common to class members predominate over any questions affecting
only individual members, predominance and that (2) a class action
is superior to other available methods for fairly and efficiently
adjudicating the controversy."

Judge Parker opines that the issue of whether all Class Members
were the victims of unlawful practices will predominate over
individualized inquires because "liability can be determined on a
class-wide basis." Given each Class Member's potential maximum
damages (on average, roughly $200) there is little incentive to
bring individual actions. Accordingly, it is desirable to
concentrate the claims in the Court. Lastly, the request for class
certification is only for purposes of settlement, and Judge Parker
need not inquire as to whether the case, if tried, would present
management problems.

B. The Settlement is Fair in Light of Rule 23(e) and the Grinnell
Factors

Pursuant to Fed. R. Civ. P. 23(e), courts routinely approve
settlements of a class action such as the instant one. "Settlement
approval is within the Court's discretion, which should be
exercised in light of the general judicial policy favoring
settlement." As provided, the district court's approval of a
settlement is contingent on a finding that the settlement is "fair,
reasonable, and adequate."

Taking into consideration all of the parties' efforts, Judge Parker
concludes that the settlement is procedurally fair. At all times
during the settlement process, the Parties' negotiated on an
arm's-length basis -- something the Court is well-positioned to
assess given that it supervised the extended settlement discussion.
Furthermore, the Plaintiffs are adequate representatives because
their interests are aligned with other class members' interests.

In summary, Judge Parker finds the settlement was structured to
provide meaningful consideration to the class in light of the risks
of litigation and to ensure broad notice of settlement to the class
members and incentive participation in the settlement. Thus, final
approval of the settlement under Rule 23(e) is warranted.

C. Attorneys' Fees

Rule 23(e)(C)(iii) also requires consideration of the terms of any
proposed award of attorneys' fees. "In a certified class action,
the court may award reasonable attorneys' fees and nontaxable costs
that are authorized by law or by the parties' agreement." "Both the
lodestar and the percentage of the fund methods are available to
district judges in calculating attorneys' fees."

The Class Counsel requests, and the Defendants do not oppose,
combined litigation expenses and attorneys' fees of one-third of
only the $56 million cash fund (i.e., $18,666,666). The requested
fee is also reasonable considering this action's size and
complexity. Judge Parker finds the attorneys' fee award requested
to be fair and reasonable. This attorneys' fee award will be
deducted from the Gross Settlement Fund.

The Class Counsel notes it has spent $325 000 in litigation costs
and expenses. These expenses included filing fees, service fees,
notice printing and mailing fees, deposition and translation fees,
travel expenses, and fees related to mediation. However, the Class
Counsel does not seek to reduce the Settlement Fund by this amount;
rather, they will absorb this expense. In other words, such
expenditures are subsumed in the attorneys' fees requested, meaning
that the fees are actually slightly less than one-third of the
Settlement Fund. That Class Counsel are not seeking to reduce the
Settlement Fund by this amount also supports approval of the award
of attorneys' fees.

D. Service Awards

Under the settlement in the case, the Plaintiffs may apply to the
Court for service awards of up to $12,500 for each of the 15 Class
Representatives. Plaintiffs Geraldine Mahood and Maryanne Deracleo
request $12,500. The additional seven individuals who remained
Named Plaintiffs in the action at the time of settlement and
participated in all aspects of the litigation, including five that
sat for depositions, request $10,000 each. Four other individuals
who appeared as Named Plaintiffs in this action but were later
dismissed or appeared in one of the state court actions request
$7,500. Finally, two individuals who served as alternate Named
Plaintiffs, were subpoenaed by Noom, and also assisted in the
prosecution, request $5,000. The total requested by these
Plaintiffs is $135,000.

Judge Parker finds that the Class Representatives diligently
represented the interests of the class, provided the Class Counsel
with important factual knowledge, and were involved in settlement
negotiations. The staggered nature of the service awards reflects
the increased amount of effort and risk expended by the individual
Class Representatives, and, in light of the total settlement
amount, is fair and reasonable. Therefore, Judge Parker approves
the proposed service awards as requested. This amount will be
deducted from the Gross Settlement Fund.

E. Cy Pres Designation

The Settlement Agreement provides for the Plaintiffs to request the
approval of cy pres recipients and recommend the Court designate
National Consumers League ("NCL") and the National Consumer Law
Center ("NCLC"). After reviewing the submissions, including the
letters provided by these organizations, Judge Parker finds they
have committed to comply with the Settlement Agreement and are well
suited recipients insofar as their mission is to protect against
fraud in the digital marketplace and educate legal practitioners
regarding the same. Accordingly, she approves NCL and NCLC as cy
pres recipients.

III. Conclusion

For the foregoing reasons, Judge Parker certifies the Class for
purposes of settlement and approves the terms and conditions of the
Settlement Agreement subject to it being fully funded by the
Defendant. The Gross Settlement Fund for payment to Class Members
is $56 million. The Plaintiffs' requests for (1) service awards
totaling $135,000; and (2) $18,666,666 in attorneys' fees are
granted. Thus, Judge Parker approves awards, totaling $18,801,666
which are to be deducted from the Gross Settlement Fund amount of
$56 million. The parties will proceed with the administration of
the settlement in accordance with the terms of the Settlement
Agreement.

The action is dismissed with prejudice. The Clerk of Court is
directed to terminate the case.

A full-text copy of the Court's July 12, 2022 Opinion & Order is
available at https://tinyurl.com/3dmhbsv6 from Leagle.com.


PHILADELPHIA, PA: Class Settlement in Remick Suit Gets Final Nod
----------------------------------------------------------------
In the case, THOMAS REMICK, et al., on behalf of themselves and all
others similarly situated, Plaintiffs-Petitioners v. CITY OF
PHILADELPHIA; and BLANCHE CARNEY, in her official capacity as
Commissioner of Prisons, Defendants-Respondents, Civil Action No.
20-1959 (E.D. Pa.), Judge Berle M. Schiller of the U.S. District
Court for the Eastern District of Pennsylvania grants the parties'
Joint Motion for Final Approval of Class Action Settlement.

I. Introduction

Before the Court is the parties' Joint Motion. Following more than
two years of litigation, the Plaintiffs -- a class of persons who
are currently or will in the future be confined in the Philadelphia
Department of Prisons ("PDP") -- and the Defendants -- the City of
Philadelphia and Commissioner of Prisons Blanche Carney -- entered
into arm's length settlement negotiations that resulted in the
execution of a global settlement agreement. The Court previously
granted preliminary approval of the Settlement Agreement on April
13, 2022. After providing notice of the Settlement Agreement to
class members, only one legitimate objection was submitted. A
fairness hearing was held on July 6, 2022, at which the counsel for
both parties appeared and no further objections were made.

II. Background

On April 20, 2020, the Plaintiffs filed suit against the Defendants
to compel them "to protect individuals incarcerated in the PDP from
the risks of serious harm they face from the twin dangers of
COVID-19 and prolonged isolation in their cells." Over the ensuing
two years, inter alia, the Court issued numerous orders relating to
the PDP's COVID-19 protocols and jail conditions; the Plaintiffs
filed two contested motions for contempt, both of which were
resolved via settlement; and the Defendants filed a contested
motion to vacate one of the Court's orders, which was also resolved
via settlement. All the while, the Court and the parties held
biweekly status conferences, and the parties regularly submitted
status reports, declarations from incarcerated persons,
certifications from prison staff, and information relating to
COVID-19 infection and vaccination rates at PDP facilities.

More recently, on Jan. 7, 2022, the Plaintiffs filed their Motion
for Preliminary Injunction. The Plaintiffs thereafter filed their
Third Amended Motion to Certify Class on Jan. 28, 2022, and Third
Amended Complaint on Feb. 22, 2022. The Defendants moved to dismiss
the Third Amended Complaint on Feb. 25, 2022.

On March 11, 2022, the Court certified a 23(b)(2) class. The class
comprises "all persons who are currently or will be in the future
confined in the PDP, and are or will be subjected to illegal or
unconstitutional conditions of confinement as a result of policies
and restrictions implemented in response to the COVID-19 pandemic,
and the PDP's staffing shortage." The Court scheduled a hearing on
the Plaintiffs' preliminary injunction motion for March 29, 2022.

While these motions were pending, the parties entered into arm's
length settlement negotiations. On March 28, 2022, the Court
rescheduled the preliminary injunction hearing for April 25 after
the parties informed the Court of their initial successes. Two
weeks later, on April 12, 2022, the parties submitted a joint
motion for the preliminary approval of the Settlement Agreement.
The Court preliminarily approved the Settlement Agreement on April
13, 2022 and scheduled a fairness hearing for July 6, 2022. During
the fairness hearing, the counsel for both the Plaintiffs and the
Defendants further voiced their approval of the Settlement
Agreement.

Under the terms of the Settlement Agreement, the City will: (1)
implement measures to enhance the hiring and retention of
correctional officers, including by issuing signing and retention
bonuses; (2) provide incarcerated persons with greater amounts of
out-of-cell time on a schedule with graduated increases; (3)
increase capacity for in-person visits and develop a plan for
return to pre-pandemic programming; (4) continue to ensure adequate
and timely medical and mental health treatment, including by
expanding mental health programming and reducing backlogs for
medical appointments; (5) ensure compliance with individuals' due
process rights during disciplinary proceedings; (6) expand phone
and tablet access; (7) continue the implementation of a lock
replacement program and implement refresher training on the
emergency call button system; (8) continue to follow
COVID-19-related protocols to ensure incarcerated persons are
available for court and meetings with attorneys, including by
testing incarcerated persons before court appearances; and (9)
provide refresher training on the PDP's use of force policy.

The Defendants also agreed to withdraw their Petition for
Permission to Appeal this Court's Class Certification Order, which
is currently pending in the Third Circuit Court of Appeals.

The Settlement Agreement further provides for the Court's
appointment of a monitor to assist the Court and the parties in
implementing the Settlement Agreement for a period of two years.
The parties recommended, and the Court approved and appointed,
Cathleen Beltz as the Monitor on May 25, 2022.

III. Discussion

To guide district courts considering approval of class action
settlements, the Third Circuit has adopted a nine-factor test,
referred to as the Girsh test (Girsh v. Jepson, 521 F.2d 153, 156
(3d Cir. 1975)). Under the Girsh test, the Court considers: (1) the
complexity, expense, and likely duration of the litigation; (2) the
reaction of the class to the settlement; (3) the stage of the
proceedings and the amount of discovery completed; (4) the risks of
establishing liability; (5) the risks of establishing damages; (6)
the risks of maintaining the class action through the trial; (7)
the ability of the defendants to withstand a greater settlement;
(8) the range of reasonableness of the settlement in light of the
best possible recovery; and (9) the range of reasonableness of the
settlement in light of all the attendant risks of litigation.

The Third Circuit subsequently expanded upon the Girsh factors to
enumerate several permissive factors, known as the Prudential
factors, citing In re Prudential Ins. Co., 148 F.3d 283, 323 (3d
Cir. 1998), including: (1) the maturity of the underlying
substantive issues; (2) the existence and probable outcome of
claims by other classes and subclasses; (3) the comparison between
the results achieved by the settlement for individual class or
subclass members and the results achieved -- or likely to be
achieved -- for other claimants; (4) whether class or subclass
members are accorded the right to opt out of the settlement; (5)
whether any provisions for attorneys' fees are reasonable; and (6)
whether the procedure for processing individual claims under the
settlement is fair and reasonable.

Judge Schiller finds that the Settlement Agreement is fair,
reasonable, and adequate. In sum, he finds that a balancing of the
relevant Girsh and Prudential factors weighs heavily in favor of
approval of the Settlement Agreement. It is a vast understatement
to say that the litigation was toilsome and trying—both in terms
of workload and emotional taxation, given the gravity of the issues
facing class members -- forcing counsel to navigate through
uncharted and unprecedented times as the COVID-19 pandemic gripped
the PDP. While it is certainly too soon to declare the COVID-19
pandemic "over," Judge Schiller genuinely applauds the counsel and
their dexterous work at bringing the formal components of the
litigation to a close. It is apparent that the parties have a plan
in place to confront the, at times, unfathomably harrowing
conditions at the PDP. The Court is further comforted by the
appointment of Ms. Beltz -- as skillful and experienced as they
come -- as the Monitor, and Judge Schiller looks forward to working
with her to implement the Settlement Agreement and actively keep
tabs on the PDP over the next few years. The Settlement Agreement
also provides an avenue for the Plaintiffs to return to this Court
should conditions at PDP stagnate or deteriorate.

IV. Conclusion

For the reasons he stated, Judge Schiller is satisfied that the
Settlement Agreement is fair, reasonable, and adequate. He
therefore grants the Joint Motion and approves the Settlement
Agreement. An Order consistent with the Memorandum will be docketed
separately.

A full-text copy of the Court's July 12, 2022 Memorandum is
available at https://tinyurl.com/4jfn9723 from Leagle.com.


PORTLAND, OR: Don't Shoot Portland's Bid to Certify Class Denied
----------------------------------------------------------------
In the case, DON'T SHOOT PORTLAND, a nonprofit corporation, in its
individual capacity; NICHOLAS J. ROBERTS, in an individual capacity
and on behalf of themselves and all others similarly situated;
MICHELLE "MISHA" BELDEN, in an individual capacity and on behalf of
themselves and all others similarly situated; ALEXANDRA JOHNSON, in
an individual capacity and on behalf of themselves and all others
similarly situated; THOMAS DREIER, in an individual capacity and on
behalf of themselves and all other similarly situated; and LESTER
WRECKSIE, in an individual capacity and on behalf of themselves and
all others similarly situated, Plaintiffs v. CITY OF PORTLAND, a
municipal corporation, Defendant, Case No. 3:20-cv-00917-HZ (D.
Or.), Judge Marco A. Hernandez of the U.S. District Court for the
District of Oregon denies the Plaintiffs' motion for class
certification.

I. Overview

Plaintiffs Don't Shoot Portland, Nicholas Roberts, Michelle "Misha"
Belden, Alexandra Johnson, Lester Wrecksie, and Thomas Drier, on
behalf of themselves and all others similarly situated, bring this
case against Defendant City of Portland. In the Fourth Amended
Complaint, the Plaintiffs allege that the Defendant violated the
First and Fourth Amendments through the Portland Police Bureau's
use of less lethal force during the 2020 Portland protests.

On June 9, 2020, the Court issued a Temporary Restraining Order
barring the use of tear gas by Defendant City of Portland except in
situations in which the lives or safety of the public or the police
are at risk. Based on the stipulation of the parties, the Court
further restrained Defendant City of Portland's use of less lethal
munitions on June 26, 2020. On Nov. 27, 2020, the Court found the
Defendant in contempt of the parties' Stipulated Additional
Temporary Restraining Order, and on March 16, 2021, ordered
sanctions to achieve compliance with the Order.

Now, after conducting limited class discovery over the past year,
the Plaintiffs move for class certification.

II. Factual Background

After the murder of George Floyd by a Minneapolis police officer,
thousands of people took to the streets across the United States to
protest police brutality and call for reform. Protests began in
Portland on May 29, 2020, and continued almost daily through Nov.
15, 2020. Portlanders gathered in parks and in front of courthouses
and police buildings. They marched throughout the city.

From the beginning of the protests, the Defendant's response
frequently involved the use of force. Portland Police Bureau
("PPB") Rapid Response Team ("RRT") officers physically pushed
protestors with batons and used targeted less lethal weapons,
including OC spray, FN303s, and 40mm less lethal launchers against
individuals. PPB authorized the use of indiscriminate force,
including CS gas, rubber ball distraction devices ("RBDDs"), and
flash bangs. The U.S. Department of Justice has estimated that
force was used over 6,000 times during Portland protests.

On May 29, 2020 -- the first evening of protests in Portland --
individuals gathered at Peninsula Park in Northeast Portland and
outside of the Pioneer Courthouse and the Justice Center in
downtown Portland. Protests began peacefully. But in the evening,
protests became chaotic, and some individuals in the protests
engaged in dangerous activity. Flares were thrown into the Justice
Center after the protest was declared an unlawful assembly,
starting a fire in the building that houses the Multnomah County
Detention Center.

On May 30, 2020, protestors again gathered near the Justice Center.
PPB officers describe using tear gas and other less lethal weapons
after protestors began throwing objects and attempting to scale a
newly erected fence around the Justice Center. In Force Data
Collection Reports ("FDCRs"), officers also described deploying CS
gas and smoke to the rear of the crowd to prevent them from pushing
back towards officers. Another officer describes using RBDDs on a
crowd of individuals running away in order to disperse them.

On May 31, 2020, protests were held in different locations
throughout the city, again with varying police response. Earlier in
the day, PPB facilitated a large march that began at Laurelhurst
Park on Portland's east side and remained peaceful. Later that day,
after protestors began throwing objects at the police, PPB used
tear gas against the crowd.

On June 1, 2020, thousands of people marched and protested. PPB
monitored the protests, and for most of the day protests remained
peaceful. Later in the evening, however, individuals threw
projectiles at officers, and PPB arrested individuals engaged in
unlawful conduct. PPB also deployed less lethal force and smoke
that evening.

On June 2, 2020, a group of protestors peacefully marched downtown
from Revolution Hall, stopping on the Burnside Bridge to lie down.
Later that evening, protestors also gathered in front of the
Justice Center. Protestors recall being subjected to tear gas,
pushed with batons, and targeted with RBDDs that evening. The
Plaintiffs described peacefully protesting before being subjected
to force. But according to police, protestors attempted to breach
the fence around the Justice Center and threw items like fireworks,
glass bottles, and baseball bats.

In the months that followed, protests continued. Some protests
proceeded without police intervention. But confrontations between
protestors and police were frequent, and the parties' evidence
reveals night after night of chaos. PPB details the use of force
against protestors throwing objects, shining lasers into officers'
eyes, barricading doors, setting fires, and tearing down fences.
But the Plaintiffs provide evidence of the use of force against
protestors complying with police commands or engaged in passive
resistance. Significant injuries were caused by these munitions.

PPB Directives 1010 and 635.10 govern the use of force.

Two additional city policies governing the use of tear gas during
protests were issued during the pendency of this litigation. In
June 2020, Portland Mayor Ted Wheeler -- who also serves as the
City's police commissioner -- issued a directive barring the use of
tear gas "unless there is a serious and immediate threat to life
safety, and there is no other viable alternative for dispersal."
Tear gas could not be used to "disperse crowds of non-violent
protestors or for general crowd management purposes." In September
2020, Mayor Wheeler further restricted the use of tear gas,
requiring authorization from him or his designee before use and
limiting its use to instances where there is "an immediate risk of
death or serious physical injury which cannot otherwise be safely
addressed without greater application of force."

The Court has also limited PPB's use of tear gas and less lethal
munitions. In its June 9, 2020 Temporary Restraining Order, the
Court limited PPB's use of tear gas to situations "in which the
lives or safety of the public or the police is at risk" and
restricted PPB from using tear gas "to disperse crowds where there
is no or little risk of injury." In the June 26, 2020 Stipulated
Additional Temporary Restraining Order, the Court limited PPB's use
of FN303s and 40mm less lethal launchers "as outlined in PPB Use of
Force Directive 1010" and prohibited its use "where people engaged
in passive resistance are likely to be subjected to force."
Finally, the Court restricted the use of aerosol restraints like OC
spray, prohibiting its use against persons engaged in passive
resistance and requiring that members minimize exposure to
nontargeted persons.

Following any use of force, PPB officers must file a Force Data
Collection Report ("FDCR") before the end of their shift. The FDCR
must detail the time, location, type of force used, and legal
justification for the use of force. Officers also report their use
of force to a supervisor so that they can initiate an
investigation. The supervisor then writes an After Action Report
("AAR") within 72 hours of the use of force, which is reviewed to
determine if the AAR filer followed Directive 1010. These
requirements apply even in the crowdcontrol setting. According to
the Defendant, accurate and timely FDCRs and AARs are essential to
determining whether force was compliant with City policy and
training because without accurate data the City may not be able to
address training and discipline problems.

Two different entities are responsible for discipline and oversight
of PPB officers. The Independent Police Review ("IPR") is the
City's oversight agency housed in the Auditor's Office. Bell Dep.
32:23-33:05. Internal Affairs ("IA") is the administrative
investigatory department of PPB. During the 2020 protests, the
City's IPR received 107 complaints about the use of force.

The Plaintiff proposes five class representatives: Nicholas
Roberts, Michelle "Misha" Belden, Alexandra Johnson, Lester
Wrecksie, and Thomas Dreier. Plaintiff Roberts attended protests in
Portland from May through August 2020. He claims he did not engage
in anything beyond passive resistance but was subject to
indiscriminate and less lethal munitions. His experiences at the
protests were terrifying and have made him fearful of protesting
and gathering in large crowds.

Plaintiff Belden attended their first protest on May 29, 2020, and
continued to occasionally attend protests through Sept. 5, 2020.
During these protests, Belden was tear gassed most evenings they
protested even though their conduct never rose above "passive
resistance." These experiences made them fearful of attending
future protests.

Plaintiff Johnson attended between 45 and 65 protests in 2020. She
attended her first protest on May 31, 2020, but the first incident
where she was exposed to tear gas by PPB was on June 5 outside of
the Justice Center in downtown Portland. That evening, she was
exposed to tear gas when PPB fired canisters into a crowd at
Chapman Square, at the intersection of Third and Main, and on
Madison between Third and Fourth Avenues. One of the canisters hit
her in the chest and exploded at her feet.

Plaintiff Lester Wrecksie attended multiple protests after the
killing of George Floyd. Wrecksie attended most of the nightly
protests in June 2020, occasionally carrying protest signs or an
umbrella with messages like "Black Lives Matter," "Free
Palestine/End Apartheid," "Fuck 12," "Melt ICE," and "ACAB." He
never threw anything at police, lit any fires, engaged in any
property destruction, or engaged in any acts beyond passive
resistance. Because of his experiences, he is wary of attending
another demonstration.

Plaintiff Thomas Drier attended between 15 and 48 protests between
May 25, 2020, and Nov. 15, 2020. He did not begin protesting until
a month or two after George Floyd's death. He never threw any
objects, lit fires, or graffitied property during any protest
except for once "under handing" a water bottle over a fence in
front of the federal courthouse.

III. Discussion

Under Federal Rule of Civil Procedure 23, a suit may proceed as a
class action if: (1) The class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and
adequately protect the interests of the class. In addition to
satisfying the four Rule 23(a) criteria, a class action may proceed
only if one of the Rule 23(b) criteria is met. To proceed under
Rule 23(b)(2), a court must find "the party opposing the class has
acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole." A plaintiff
has the burden to establish compliance with Rule 23.

In moving for class certification, Plaintiffs have documented
significant abuses by the Portland Police Bureau, described a
disciplinary and oversight system unable to handle the pressure of
the 2020 protests, and uncovered extreme bias and misinformation in
PPB's training. These facts and the events described by protestors
are deeply troubling. But the question presently before the Court
is not whether Plaintiffs will succeed on the merits of their First
and Fourth Amendment claims. The question is whether certification
of Plaintiffs' proposed class and subclasses is appropriate in this
case. The Court finds that it is not.3

The Plaintiffs move for certification of one First Amendment class
and two Fourth Amendment subclasses:

     A. First Amendment Class: all people who engaged in protest
activities that followed the death of George Floyd opposing police
violence and white supremacy between May 25, 2020 and Nov. 15,
2020.

     B. Indiscriminate Weapons Subclass for purposes of the Fourth
Amendment claim: This is a subclass of the First Amendment Class
that consists of protestors who were subjected to tear gas, flash
bang grenades, aerial distraction devices, rubber ball distraction
devices, smoke grenades, and other similar uses of force by the PPB
from May 25, 2020 to Nov. 15, 2020. This subclass includes
protestors who engaged in passive resistance to the orders of
police and those that attempted to comply with orders of the
police, but does not include those who engaged in conduct beyond
passive resistance.

     C. Targeted Weapons Subclass for the purposes of the Fourth
Amendment claim: This is a subclass of the First Amendment class
that consists of protestors who were subjected to "less lethal
weapons" (FN303 launchers, 40mm launchers, batons, aerosol
restraints) while engaged in protest activities from May 25, 2020
to Nov. 15, 2020. This subclass includes protestors who engaged in
passive resistance to the orders of police and those that attempted
to comply with the orders of the police, but does not include those
who engaged in conduct beyond passive resistance.

The crux of the Plaintiffs' First and Fourth Amendment claims is
their allegation that the Defendant has a pattern, practice, and
custom of retaliating against protestors because of the content of
their speech by using force against crowds indiscriminately,
without individualized justification, and when a number of
protestors in the crowd were engaged in only passive resistance.
Regarding the Plaintiffs' Fourth Amendment claim, the Plaintiffs
allege that the Defendant deployed tear gas and other "less lethal"
weapons indiscriminately on large crowds of passively resisting
protestors and protestors who were complying with police
instructions. The Plaintiffs' First Amendment claim is broader,
challenging every use of less lethal force against all protestors
during the summer and fall of 2020.

Considering the Plaintiffs' claims and proposed class and
subclasses, Judge Hernandez finds that class certification is not
appropriate in the case. He finds that the Plaintiffs' classes lack
commonality. The analyses for both the First and Fourth Amendment
claims are highly fact intensive. The Plaintiffs' proposed classes
include thousands of protestors engaged in a range of behaviors who
have been subject to both indiscriminate and targeted force by
different individuals over more than 100 nights of protests. The
proposed classwide proceeding will not generate common answers apt
to drive the resolution of the litigation.

The Plaintiffs propose several questions relevant to each class and
subclass that they argue demonstrate commonality. The Plaintiffs,
however, fail to tether their analysis to the elements of their
claims. Nor do they adequately demonstrate that, given their claims
and the facts described, their proposed questions would generate
common answers apt to drive the resolution of the litigation. The
case involves the dilemma of what type and amount of force can be
used by police against protestors, particularly in situations where
protestors have within their ranks individuals that threaten the
safety of police officers and others. It may be difficult to
resolve this issue based on the events of a single night, much less
over the course of 100 nights of protest, because each night
involved a variety of different protests, in different locations,
and with different circumstances. When undertaking the analysis in
light of the claims at issue here and the significant scope of the
classes proposed, it becomes evident that class certification is
improper in the case.

The Plaintiff proposes additional common questions grounded in
Monell liability. Again, they argue that "the core of all of their
claims is that PPB has a pattern, practice, and custom of using
tactics that chill protected speech" and using indiscriminate force
against passively resisting protestors. They further claim that
Defendant's "failure to train and/or discipline officers for
violating the constitution, and to cease this pattern, practice,
and custom has had the effect of condoning or acquiescing to these
unconstitutional practices." In support of their claim, the
Plaintiffs submit evidence of an ineffective oversight and
disciplinary system along with incorrect and biased training
materials.

Judge Hernandez states, to prevail on a municipal liability claim
under Section 1983, the Plaintiffs must show that a municipal
custom or policy caused the violation of their constitutional
rights, citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690
(1978) (holding that a municipality is a "person" subject to
liability under Section 1983 when it causes a constitutional tort
through "a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers"). To
establish Monell liability, the plaintiff must show that (1) the
plaintiff was deprived of a constitutional right; (2) the
municipality had a policy, longstanding practice, or custom; (3)
the policy, practice, or custom amounted to "deliberate
indifference to the plaintiff's constitutional right;" and (4) the
policy, practice, or custom was "the moving force behind the
constitutional violation."

Based on the Plaintiffs' motion and the record before the Court,
Judge Hernandez holds that it is not possible to conclude that the
Monell claims -- specifically, the alleged deficiencies with the
Defendant's training and discipline -- create commonality. He finds
that each class member has not suffered the same constitutional
injury merely because they are exposed to the Defendant's
practices. Put another way, even assuming that the Defendant's
practices or customs are defective, the underlying constitutional
injuries alleged here cannot be sustained merely because an
individual is exposed to a risk of harm. In addition, even if the
Plaintiffs can demonstrate a deficient practice or training, this
is not the "glue" that holds the class together because it is still
unclear whether the deficient practice was the cause of any
underlying violation.

IV. Conclusion

In sum, Judge Hernandez concludes that dissimilarities within the
proposed class and the need for individualized determinations
permeate the class members' First and Fourth Amendment claims, and
allegations of Monell liability do not, on their own, create
commonality where there is none. Because the proposed classwide
proceeding is not apt to produce common answers that drive the
resolution of the Plaintiffs' claims, class certification is
denied. The parties will file a joint status report and proposed
case schedule 30 days from the date of the Opinion & Order.

A full-text copy of the Court's July 12, 2022 Opinion & Order is
available at https://tinyurl.com/272y923t from Leagle.com.

Jesse Merrithew -- info@lmhlegal.com -- Viktoria Lo, LEVI MERRITHEW
HORST PC, in Portland, Oregon, Juan Chavez -- info@ojrc.info --
Brittney Plesser, Alexander Meggitt, Franz H. Bruggemeier, OREGON
JUSTICE RESOURCE CENTER, in Portland, Oregon, J. Ashlee Albies --
ASHLEE@ALBIESSTARK.COM -- Whitney B. Stark --
WHITNEY@ALBIESSTARK.COM -- Maya Rinta -- MAYA@ALBIESSTARK.COM --
ALBIES & STARK LLC, in Portland, Oregon, Attorneys for the
Plaintiffs.

J. Scott Moede, Naomi Sheffield, Robert T. Yamachika, PORTLAND CITY
ATTORNEY'S OFFICE, in Portland, Oregon, Attorneys for the
Defendant.


RBS CITIZENS: Court Denies Reinig's Renewed Bid to Certify Class
----------------------------------------------------------------
In the case, ALEX REINIG, KEN GRITZ, BOB SODA, MARY LOU GRAMESKY,
PETER WILDER SMITH, WILLIAM KINSELLA, DANIEL KOLENDA, VALERIE DAL
PINO, AHMAD NAJI, ROBERT PEDERSON, TERESA FRAGALE, DAVID HOWARD,
DANIEL JENKINS, MARK ROSS, Plaintiffs v. RBS CITIZENS, N.A.,
Defendant, Case No. 2:15-CV-01541-CCW (W.D. Pa.), Judge Christy
Criswell Wiegand of the U.S. District Court for the Western
District of Pennsylvania denies the Plaintiffs' Renewed Motion for
Class Certification.

I. Background

The Plaintiffs, a group of current and former Mortgage Loan
Officers ("MLO") employed by Defendant RBS Citizens, N.A.
("Citizens"), allege that, notwithstanding Citizens' official
timekeeping policy, which requires MLOs to report all hours worked,
Citizens maintained an unofficial policy of discouraging MLOs from
reporting overtime, thereby resulting in MLOs working off the
clock. The Plaintiffs' claims for unpaid overtime resulting from
the alleged unofficial policy span from Nov. 24, 2013 to the
present (a period of nearly a decade) and apply to a putative class
of more than 1,400 MLOs spread across ten states. The Plaintiffs
claim that they and the putative class members are entitled to
damages for unpaid overtime wages.

In a two-volume report, covering motions for summary judgment and
motions for class and collective certification, the Special Master
recommended that the Plaintiffs' first Motion for Class
Certification should be granted, and that the 10 state subclasses
proposed by the Plaintiffs should be certified. Judge Arthur
Schwab, then presiding, adopted the Special Master's Report and
Recommendation, and certified the case as a class action under Rule
23(b)(2) and Rule 23(b)(3). Citizens timely appealed the class
certification order under Rule 23(f).

The Third Circuit concluded in a precedential opinion that, based
on the record as it then existed, it could not "make a definitive
determination as to whether Plaintiffs' representative evidence is
sufficient to satisfy Rule 23's commonality and preponderance
requirements." The Court of Appeals therefore vacated the class
certification order and remanded "with instructions that the
District Court conduct a 'rigorous' examination of the factual and
legal allegations underpinning the Plaintiffs' claims before
deciding if class certification is appropriate." On remand to the
District Court, the Plaintiffs filed their Renewed Motion, and,
after another appeal to the Third Circuit for reasons not directly
relevant to the resolution of the pending Renewed Motion, the case
was transferred to the undersigned.

Following transfer to the undersigned, the Court promptly requested
and received a joint report from the parties regarding the status
of the case, and held a conference. After discussion with the
parties, the Court scheduled a class certification hearing.
Mindful of its obligation to conduct a "'rigorous' examination of
the factual and legal allegations underpinning the Plaintiffs'
claims," the Court held a three-day evidentiary hearing on the
Plaintiffs' Renewed Motion.

During the hearing, the Court heard testimony (including live and
in-person, live via videoconference, by way of video deposition,
and by reading of deposition designations) from more than 20
witnesses, including numerous current and former MLOs, Producing
Sales Managers ("PSM") (the position within Citizens that directly
supervises MLOs), and other current and former Citizens' managers.
And, in addition to the briefing and exhibits originally submitted
with the Plaintiffs' Renewed Motion in 2019, the parties further
submitted voluminous exhibits and proposed findings of fact and
conclusions of law for the Court's consideration. The Plaintiffs'
Renewed Motion is, therefore, ripe for disposition.

II. Discussion

Because the Rule 23(b)(3) predominance requirement subsumes Rule
23(a)'s commonality factor, and because class certification will be
denied, Wiegand considers only Rule 23(b)(3)'s predominance factor.
The predominance requirement "'tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation,'"
and as such "calls upon courts to give careful scrutiny to the
relation between common and individual questions in a case."

In its decision vacating the earlier class certification order in
the case, the Third Circuit explained the essential elements of the
Plaintiffs' claims, and the resulting showing they must make to
prevail on their Renewed Motion: To satisfy their wage-and-hour
claims, the Plaintiffs must show that: (1) pursuant to Citizens'
unwritten policy-to-violate-the-policy, the class MLOs performed
overtime work for which they were not properly compensated; and (2)
Citizens had actual or constructive knowledge of that policy and of
the resulting uncompensated work. Thus, to satisfy the predominance
inquiry, the Plaintiffs must demonstrate (1) that Citizens' conduct
was common as to all of the class members, i.e., that the
Plaintiffs' managers were carrying out a common mode of conduct
vis-a-vis the company's internal policy-to-violate-the-policy, and
(2) that Citizens had actual or constructive knowledge of this
conduct.

In explaining its decision, the Third Circuit expressed "serious
doubts whether the evidence tendered by the Plaintiffs is
sufficiently representative of the class as a whole" to satisfy the
predominance requirement. In doing so, the Court highlighted in
particular that "not only were the Plaintiffs' experiences confined
to interactions with specific managers in distinct offices, but
their statements are dissimilar and oftentimes ambiguous,
reflecting in many instances nothing more than typical workplace
concerns about MLO work ethic and effectiveness" and the
Plaintiffs' evidence comes not from a similarly situated group of
MLOs but from individual employees who worked in distinct offices
at various times throughout the relevant class period."

With this framework in mind, Judge Wiegand has undertaken a
rigorous review and analysis of the record relevant to class
certification. Having evaluated the evidence under the applicable
law, she concludes that the Plaintiffs have not satisfied their
burden to demonstrate predominance by a preponderance of the
evidence, such that "'the common, aggregation-enabling, issues in
the case are more prevalent or important than the non-common,
aggregation-defeating, individual issues.'"

In Judge Wiegand's view, there are multiple, interlocking factors
endemic to the Plaintiffs' purportedly representative evidence that
point towards the conclusion that individual questions predominate
here. For example: (1) the MLO position entailed a high degree of
flexibility and self-direction afforded to individual MLOs to set
their own schedules; (2) most of Citizens' managers had little
day-to-day oversight regarding the day-to-day activities of the
MLOs who reported to them; and (3) MLOs gave varied and
inconsistent reasons for not recording all of the hours they
claimed to have worked. Ultimately, these issues establish that the
Plaintiffs' representative evidence is insufficient to demonstrate
injury on a class wide basis.

In sum, then, common questions with respect to both essential
elements of the Plaintiffs' claims -- i.e. (1) whether and to what
extent any given MLO actually worked unpaid overtime hours and (2)
whether and when Citizens had at least constructive knowledge that
a given MLO had worked unpaid overtime -- do not predominate over
individual issues, making class certification inappropriate in this
case.

IV. Conclusion

For the reasons she set forth, Judge Wiegand denies the Plaintiffs'
Renewed Motion for Class Certification.

A full-text copy of the Court's July 12, 2022 Opinion is available
at https://tinyurl.com/3x6hmcxb from Leagle.com.


RITZ-CARLTON HOTEL: Bids to Exclude Fox Declaration & Errata Denied
-------------------------------------------------------------------
In the case, MICHAEL FOX, on behalf on himself and all others
similarly situated, Plaintiff v. THE RITZ-CARLTON HOTEL COMPANY,
LLC, Defendant, Case No. 17-CV-24284-COOKE (S.D. Fla.), Magistrate
Judge Melissa Damian of the U.S. District Court for the Southern
Distric of Florida, Miami Division, denies the Defendant's Motion
to Exclude Reply Declaration of Plaintiff Michael Fox in Support of
Plaintiff's Motion for Class Certification and Plaintiff's
Deposition Errata.

I. Introduction

The matter is before Judge Damian pursuant to an Endorsed Order of
Referral by United States District Judge Marcia G. Cooke. Judge
Damian has reviewed the Motion, the Response and Reply thereto, the
pertinent portions of the record, and all relevant authorities and
is otherwise fully advised in the premises.

In the Motion, Ritz-Carlton argues that the Fox Declaration should
be excluded as improper reply evidence. It also asks the Court to
exclude the Fox Declaration and a deposition errata served by Mr.
Fox (the "Fox Errata") on the grounds "they are shams that directly
contradict Mr. Fox's sworn deposition testimony." response, Mr. Fox
argues that the Fox Declaration rebuts arguments raised by
Ritz-Carlton in its Response in Opposition to the Motion for Class
Certification, that Mr. Fox properly served the Fox Errata, and
that, if it believes there is new material requiring a response,
Ritz-Carlton may request leave to submit a sur-reply responding to
the allegedly new material it contests.

II. Background

The Plaintiff filed the consumer class action on behalf of himself
and all others similarly situated against Ritz-Carlton for its
alleged violations of Section 509.214 of the Florida Statutes,
which requires every public food establishment that includes an
automatic gratuity or service charge in the price of the meal to
provide notice of the automatic gratuity on both the food menu and
on the face of the bill provided to the customer. Counts One and
Two of the Amended Complaint allege violations of the Florida
Unfair and Deceptive Trade Practices Act ("FDUPTA"), and Counts
Four and Five seek a declaratory judgment and injunctive relief
under FDUPTA, respectively.

According to the allegations in the Motion for Class Certification
(which are consistent with the allegations in the Amended
Complaint), from April 4 through April 7, 2017, Mr. Fox, stayed at
the Ritz-Carlton Key Biscayne in Miami, Florida. During his stay,
he ordered and paid for food and beverages from three separate
public food service establishments located on the hotel property:
Lightkeepers, Cantina Beach, and Key Pantry.

On April 5, 2017, Mr. Fox dined at Lightkeepers. He alleges he
ordered from the Lightkeepers menu, which consisted of a single
page. According to him, at the bottom of the one-page menu, the
following was written in italicized type that was smaller and less
bold than the other items written on the menu: "A suggested 18%
gratuity will be added to your check. Please feel free to raise,
lower, or remove this gratuity at your discretion." He alleges that
when he was done eating, he was presented with a check that
included an 18% service charge. Under the total amount due on the
check, there was a section labeled "PLEASE COMPLETE FOR ROOM
CHARGES," which included an empty line for "Additional Gratuity."
Mr. Fox added a $9.00 gratuity (more than 20% of the total bill)
and signed the check, charging the full amount to his room.

Later that same day, Mr. Fox ordered food and drinks at Cantina
Beach, the pool bar and restaurant at the hotel. He alleges that
the following statement appeared at the bottom of that menu, in
type smaller than the other items on the menu: "A suggested 18%
gratuity will be added to your check for your convenience." Id. He
alleges that when he was done eating, he was again presented with a
check that included an 18% service charge. Id. Similar to the check
he received at Lightkeepers, the check from Cantina Beach contained
a section labeled "PLEASE COMPLETE FOR ROOM CHARGES," which
included an empty line for "Additional Gratuity." He added an
$18.00 gratuity (approximately 9% of the total bill) and signed the
check, charging the full amount to his room.

And, later that same day, Mr. Fox ordered snacks and bottled water
from another establishment at the hotel known as the Key Pantry. He
alleges that he reviewed the menu at Key Pantry, and it did not
mention any automatic gratuity or service charge. Mr. Fox was
presented with a check similar to the ones he signed earlier that
day. This check also included an 18% service charge and contained a
space for "Additional Gratuity." Having purchased only bottled
water and snacks, Mr. Fox did not add any additional gratuity and
charged the full amount of the check to his room..

Mr. Fox filed the original complaint on Nov. 28, 2017. After
Ritz-Carlton filed a Motion to Dismiss, he the operative Amended
Complaint on Feb. 15, 2018. On Jan. 22, 2019, Judge James Lawrence
King dismissed the case sua sponte for lack of subject-matter
jurisdiction. Fox appealed the dismissal order and the U.S. Court
of Appeals for the Eleventh Circuit reversed the dismissal of
Counts One, Two, Four, and Five, affirmed the dismissal of Count
Three, and remanded the case for further proceedings. The case was
reassigned to Judge Cooke after remand.

Mr. Fox timely filed his Motion for Class Certification on Oct. 1,
2021. On Oct. 21, 2021, Ritz-Carlton deposed Mr. Fox. During the
deposition, Ritz-Carlton's counsel showed Mr. Fox menus from Key
Pantry, Cantina Beach, and Lightkeepers and asked if he remembered
seeing the menus before, to which Mr. Fox responded: "No," "I do
not," "I do not recall," and "I cannot recall." Mr. Fox also
testified that he realized automatic gratuity had been applied to
his restaurant bills before he paid Ritz-Carlton for his stay.
Ritz-Carlton emphasized some (but not all) of these responses to
deposition questions in its Response in Opposition to the Motion
for Class Certification, which it filed on Oct. 25, 2021, shortly
after Mr. Fox's deposition.

On Nov. 11, 2021, Mr. Fox filed a Reply in Support of the Motion
for Class Certification, which included the Fox Declaration as an
exhibit in support. In his Declaration, Fox states that he was
shown menus from Cantina Beach, Key Pantry, and Lightkeepers during
his deposition and that he could not recall at the time if they
were the same menus he saw during his stay at the Ritz-Carlton Key
Biscayne.

Pursuant to Rule 30(e)(B) of the Federal Rules of Civil Procedure,
Mr. Fox had until Nov. 20, 2021, to review his deposition
transcript and make any corrections. On Nov. 19, 2021, Mr. Fox
timely served his corrections. The Fox Errata includes corrections
to his responses to questions regarding the menus he was shown
during his deposition. Specifically, Mr. Fox changed the responses
described above from "No" to "Not this Menu," from "I do not
recall" to "I do not recall if I saw this menu," and from "I cannot
recall" to "I cannot recall if I saw these menus".

On Dec. 3, 2021, Ritz-Carlton filed the Motion at issue seeking to
exclude the Fox Declaration and Fox Errata on the grounds the Fox
Declaration is improper reply evidence and that both the Fox
Declaration and Fox Errata contradict Mr. Fox's sworn deposition
testimony."

The Motion for Class Certification and the instant Motion are ripe
for disposition. The Court notes that it has already considered and
ruled on two other motions to exclude declarations filed by Mr. Fox
in support of the Motion to Certify the Class. In addition,
Ritz-Carlton's Motion for Sanctions, based in part on Mr. Fox's
various declarations, is also before the Court and will be
addressed by a separate order.

III. Discussion

A. Whether The Fox Declaration Is Improper Reply Evidence

Ritz-Carlton argues that filing the Fox Declaration with the Reply
in Support of the Motion for Class Certification was prejudicial
because it denied Ritz-Carlton the opportunity to address the Fox
Declaration and to question Mr. Fox about it during his deposition.
However, Ritz-Carlton filed a Sur-Reply in Opposition to the Motion
for Class Certification after reviewing the Fox Declaration, and
Ritz-Carlton's Sur-Reply cites to the Fox Declaration several times
to support its arguments.

Thus, Judge Damian holds that the filing of the Fox Declaration
with the Reply did not so prejudice Ritz-Carlton because it did
have the opportunity to address the points made therein and did in
fact do so. Moreover, she is not convinced that Ritz-Carlton
suffered prejudice by not being able to question Mr. Fox regarding
his Declaration during his deposition. The Fox Declaration does not
"raise new arguments or evidence" but rather clarifies Fox's
deposition testimony. Ritz-Carlton will have the opportunity to
cross-examine Mr. Fox on any inconsistencies between the
Declaration and his deposition testimony during trial.

Thus, for the foregoing reasons, Judge Damian declines to exclude
the Fox Declaration on the basis that it is improper reply
evidence.

B. Whether The Fox Declaration And Fox Errata Are Shams

Turning to Ritz-Carlton's second basis for exclusion of the Fox
Declaration and for exclusion of the Fox Errata, Judge Damian notes
that it is within the Court's discretion to strike a declaration
that "contradicts, without explanation, previously given clear
testimony." However, the Eleventh Circuit has cautioned that
exclusion of declarations on these grounds should be done
"sparingly" and only when the declaration or affidavit
"contradicts, without explanation, previously given clear
testimony." Therefore, Judge Damian reviews the Declaration to
determine whether there are unexplained inconsistencies between the
Declaration and his deposition testimony. In doing so, she
distinguishes between "discrepancies which create transparent shams
and discrepancies which create an issue of credibility or go to the
weight of the evidence."

Although a jury may find these changes affect Mr. Fox's credibility
or diminish his persuasiveness, Judge Damian holds that the changes
are not so "inherently inconsistent" with his deposition testimony
that the Court must disregard them as a matter of law. Moreover,
Mr. Fox provides explanations for both the Fox Declaration and the
Fox Errata, thus, he does not "contradict" his deposition testimony
"without explanation."

Furthermore, the timing of the Fox Declaration and the Fox Errata
does not "further confirm they are shams that must be excluded."
Mr. Fox submitted the Fox Declaration and the Reply in Support of
the Motion for Class Certification before the Court-ordered
deadline. And, he served the Fox Errata within the 30-day time
period allowed by Rule 30(e) of the Federal Rules of Civil
Procedure. Thus, Ritz-Carlton's argument that the timing of the
documents indicates they are shams is unpersuasive.

Therefore, for the foregoing reasons, Judge Damian also rejects the
Defendant's request to exclude the Fox Declaration and Fox Errata
on the grounds they are "shams."

IV. Conclusion

For all the reasons she set forth, Judge Damian denies the
Defendant's Motion to Exclude. The Fox Declaration will remain part
of the Motion for Class Certification record for consideration by
the Court on review of that Motion.

A full-text copy of the Court's July 12, 2022 Order is available at
https://tinyurl.com/2p9x24h9 from Leagle.com.


SHOWS CALI: Court Grants Bid for Summary Judgment in Calogero Suit
------------------------------------------------------------------
In the case, IRIS CALOGERO, v. SHOWS, CALI & WALSH, LLP, et al.,
SECTION M(3), Civil Action No. 18-6709 (E.D. La.), Judge Barry W.
Ashe of the U.S. District Court for the Eastern District of
Louisiana issued an Order and Reasons:

   a. denying the Plaintiffs' motion for partial summary judgment
      as to their first claim for relief regarding the
      Defendants' violation of the Fair Debt Collection Practices
      Act ("FDCPA") by failing to itemize alleged debts;

   b. denying the Plaintiffs' motion for partial summary judgment
      as to their second claim for relief regarding the
      Defendants' violation of the FDCPA by threatening to take
      legal action on time-barred debts;

   c. denying the Plaintiffs' motion for partial summary judgment
      as to their third claim for relief regarding the
      Defendants' violation of the FDCPA by threatening to assess
      attorney's fees;

   d. denying the Plaintiffs' motion for partial summary judgment
      as to their fourth claim for relief regarding the
      Defendants' violation of the FDCPA by inducing debtors to
      make payment or take other action to revive time-barred
      debts;

   e. denying as moot the Plaintiffs' motion to strike references
      to Exhibit 1 and other unsubstantiated allegations in the
      Defendants' memorandum in support of their motion for
      summary judgment;

   f. granting the Defendants' motion for summary judgment; and

   g. denying the Plaintiffs' motion to certify class.

I. Introduction

Before the Court are four motions for partial summary judgment
filed by Plaintiffs Iris Calogero and Margie Nell Randolph, with
each motion addressing one of the four claims asserted.
Additionally, before the Court is a motion for summary judgment
filed by Defendants Shows, Cali & Walsh, LLP ("SCW"), Mary
Catherine Cali, and John C. Walsh, which addresses all of the
Plaintiffs' claims. Also before the Court are the Plaintiffs'
motion to strike and motion for class certification. The parties
respond in opposition and submit various replies in support of
their respective motions.

II. Background

The case arises from alleged violations of the FDCPA stemming from
the Defendants' attempt to collect repayment of grant funds the
Plaintiffs received from the Louisiana Road Home program following
Hurricanes Katrina and Rita. In response to the devastation these
hurricanes caused, the federal government appropriated
disaster-relief funds to affected areas, including Louisiana,
through the U.S. Department of Housing and Urban Development's
("HUD") Community Development Block Grant ("CDBG").

HUD authorized the state of Louisiana to distribute the federal
funds to its constituents. The state tasked the Louisiana Office of
Community Development (the "OCD") and the Louisiana Recovery
Authority (the "LRA") with administering the Road Home program,
which distributed CDBG funds through grants to Louisiana homeowners
who sustained unreimbursed hurricane-related damage. One such grant
was the homeowners' compensation grant, which both Plaintiffs
received. Its purpose was to compensate for damages incurred and to
mitigate against future damages from hurricanes and similar natural
disasters.

As part of the Road Home application process, applicants like the
Plaintiffs were required to disclose any funds they received from
either the Federal Emergency Management Agency ("FEMA") or from a
private insurer for hurricane-related damage to their homes. The
grant was based on a formula: the OCD would calculate the damage it
believed the storm had caused to applicants' homes, less any FEMA
or insurance payments applicants had received for the same damage.
The OCD subtracted FEMA and insurance payments to avoid awarding
"duplicate benefits."

Plaintiff Calogero contracted with the OCD for a homeowners'
compensation grant on May 11, 2007, and received $33,393. Plaintiff
Randolph contracted with the OCD for the same kind of grant on June
30, 2007, and received $28,793. When the Plaintiffs signed their
grant agreements, they acknowledged their obligation to report
duplicate payments, past or future, and acknowledged that they
could be sued for the failure to do so.

In the ensuing years, the OCD discovered numerous errors in the
distribution of the grants: thousands of recipients had received
overpayments. For example, during the grant application process,
the Plaintiffs allegedly failed to report payments received from
their insurers and FEMA and so, because the monies were not
deducted in calculating their grants, the grants received were
greater than they should have been. Accordingly, the state hired
the Defendants to assist with efforts to recover the amount of
unreported funds that resulted in grant overpayments. On Aug. 3,
2017, the Defendants sent Randolph a collection letter seeking to
recover $2,500 in allegedly overpaid grant funds. On Feb. 9, 2018,
the Defendants sent a similar letter to Calogero seeking to recover
$4,598.89. Both letters charged the Plaintiffs with breach of their
Road Home grant obligations.

Randolph alleges that she did not understand the collection letter.
She was purportedly "terrified by the Defendants' letter because
she did not have the money demanded, and she feared she would be
sued and lose her home." Randolph contacted the OCD and entered
into a payment plan of $25 a month and, on Oct. 24, 2017, executed
a promissory note on this repayment obligation.

Ms. Calogero says she, too, was scared when she received the
collection letter. She was "upset" and "intimidated" by it, and
worried about her credit score and "what would happen to her
friends and neighbors who received similar letters from the
Defendants." Following the instructions provided in the letter, she
disputed the repayment claim.

In response, the Defendants provided Calogero a "verification of
the Road Home Grant Funds owed to their client" that included a
narrative-form and an itemized-list breakdown of Calogero's debt
calculation. They explained that Calogero's misrepresentations of
the benefits she received from both FEMA and her homeowners'
insurance carrier prior to the execution of the Road Home grant
affected its calculation. The Defendants calculated the grant
amount Calogero should have been awarded based on the total amount
of benefits she received (reported and unreported) and then
subtracted that amount from the amount she was awarded, resulting
in a $4,598.89 overpayment due back to the OCD.

The Plaintiffs allege that the Defendants' efforts to seek
repayment of the grant funds violated multiple provisions of the
FDCPA, specifically, 15 U.S.C. Sections 1692e and 1962f, because
the Defendants: (1) misrepresented the amount, character, and
nature of the debt by failing to itemize the debts; (2) improperly
attempted to collect a time-barred debt; (3) improperly attempted
to collect attorney's fees; and (4) improperly required persons to
sign a promissory note.

III. Analysis

A. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." If the moving party meets that burden, then
the nonmoving party must use evidence cognizable under Rule 56 to
demonstrate the existence of a genuine issue of material fact. A
genuine issue of material fact exists if a reasonable jury could
return a verdict for the nonmoving party. After the movant
demonstrates the absence of a genuine issue of material fact, the
nonmovant must articulate specific facts showing a genuine issue
and point to supporting, competent evidence that may be presented
in a form admissible at trial. Unless there is a genuine issue for
trial that could support a judgment in favor of the nonmovant,
summary judgment must be granted.

B. The FDCPA

To establish a claim under the FDCPA, a plaintiff must establish
"(1) that she was the object of collection activity arising from a
consumer debt; (2) that the defendant is a debt collector as
defined by the FDCPA; and (3) that the defendant engaged in an act
or omission prohibited by the FDCPA."

The Plaintiffs claim that the Defendants violated the following
proscribed practices: (1) the false representation of "the
character, amount, or legal status of any debt"; (2) "the use of
any false representation or deceptive means to collect or attempt
to collect any debt or to obtain information concerning a
consumer"; and (3) the "use of unfair or unconscionable means to
collect or attempt to collect any debt." The ultimate question in
each FDCPA case is whether the unsophisticated or least
sophisticated consumer would have been led by the debt collection
letter into believing something untrue that would have influenced
their decision-making." Although the Fifth Circuit has not
specifically decided whether the application of the
unsophisticated-consumer standard is a question of law or question
of fact, it "generally treats the issue as a question of law."

C. Plaintiffs' first claim for relief -- that the Defendants
violated the FDCPA by failing to itemize alleged debts -- fails.

In their motion for partial summary judgment on their first claim
for relief, the Plaintiffs argue that the Defendants' failure to
itemize their alleged debts constitutes (1) a false, deceptive, or
misleading representation, in violation of Section 1692e; and (2)
an unfair means to collect or attempt to collect a debt, in
violation of Section 1692f.

In opposition, Defendants argue that Plaintiffs' failure-to-itemize
claim is untimely under the one-year FDCPA statute of limitations
because if the Court decides that a Louisiana ten-year prescriptive
period applies to Plaintiffs' claims (i.e., if the time-barred-debt
claim falls), then there is no "original claim" to which
Plaintiffs' recently asserted failure-to-itemize claim can relate
back. Defendants then contend that no FDCPA violation occurred
because (1) they were not required by law to itemize Plaintiffs'
debts; (2) there were no "add-on" fees included; and (3) each
collection letter included a statement that the debtor could
dispute the validity of the debt and request verification of the
claim.

In reply, the Plaintiffs maintain that the Defendants' collection
letters caused unfair confusion and lacked the requisite clarity
mandated by the FDCPA. They contend that the Defendants cannot
avoid liability by relying on the letters' offer for them to seek
further information because "the debtor is under no obligation to
reach out to his tormentor."

Judge Ashe holds that the Defendants' failure to itemize did not
violate the FDCPA. He finds that "there was nothing false,
deceptive, or misleading' about the Defendants telling the
Plaintiffs the total amount owed, without breaking that amount
down," or explaining the basis of the debt, where there were no
added charges for debt collection. Nor does the Defendants'
presentation of the debt in the collection letters constitute an
"unfair" attempt or means to collect a debt. The Defendants'
failure to itemize the basis for the original debt thus does not
result in an FDCPA violation under either Section 1692e or Section
1692f.

Judge Ashe also finds that the language of the collection letters
was not materially misleading. The Plaintiffs have not shown that
these immaterial representations caused actual harm to the
interests protected by the FDCPA. There is no evidence that they,
for example, "took or forewent any action because of the allegedly
misleading statements in the letters" because "statements that
induce no reliance," like those at issue here, "do not impede a
consumer's ability to intelligently respond to a debt collector."
Where the Plaintiffs have presented no evidence that the omission
or ambiguity frustrated their ability to intelligently respond to
the collection letters, Judge Ashe cannot agree that the letters
were materially misleading in violation of either Section 1692e or
Section 1692f. Thus, the Plaintiffs' first claim for relief fails
on this basis as well.

D. Plaintiffs' second claim for relief -- that the Defendants
violated the FDCPA by threatening to take legal action on
time-barred debts -- fails.

In their motion on their second claim, the Plaintiffs argue that
the Defendants violated the FDCPA by threatening legal action on
time-barred debts arising from alleged breaches of their Road Home
obligations. In opposition, the Defendants argue that, because the
Plaintiffs' repayment obligations are not time-barred under the
applicable state-law statute of limitations, they did not violate
the FDCPA in seeking repayment of the grant funds. In reply, the
Plaintiffs re-urge that the federal statute of limitations applies
or, if Louisiana law governs, the state five-year statute of
limitations applies.

Judge Ashe finds no violation of the FDCPA for seeking collection
on an alleged time-barred debt because the debts at issue were not
time-barred. He finds that the LRA and the OCD, as state agencies,
provided grants to homeowners pursuant to state contracts. Those
state contracts were administered by the state as part of its
day-to-day operations of the Road Home program. Consequently, those
state contracts, including any repayment obligations arising under
the contracts, are subject to a state statute of limitations.

Judge Ashe further finds that the Plaintiffs provide no evidence of
the OCD's donative intent, much less strong and convincing proof.
The recipients of the grant monies were required to demonstrate
eligibility for the Road Home grants and to enter into obligations
concerning their receipt and use of the monies. Hence, the grants
do not constitute donations but are contracts governed by the
ten-year prescriptive period of article 3499.

Lastly, although he cannot discern the exact day in March of 2008
when prescription began to run -- because no specific information
was provided to the Court about when the queries concerning the
Plaintiffs were made -- Judge Ashe can easily determine that the
Defendants' collection letters sent on Aug. 3, 2017 (to Randolph)
and Feb. 9, 2018 (to Calogero) fell within a 10-year prescriptive
window that began sometime in March of 2008 and ended sometime in
March of 2018. Thus, the debts the Defendants sought to collect
were not time-barred, and the Defendants, in this way, cannot be
said to have misrepresented the enforceability of said debts or
engaged in an unfair or unconscionable means to collect a debt.
Therefore, Judge Ashe finds no violation of either Section 1692e or
Section 1692f, and the Plaintiffs' second claim must be dismissed.

E. Plaintiffs' third claim for relief -- that the Defendants
violated the FDCPA by threatening to assess attorney's fees --
fails.

In their motion, the Plaintiffs charge the Defendants with
violating the FDCPA for allegedly threatening to seek unauthorized
recovery of attorney's fees. In opposition, the Defendants contend
that they are contractually permitted to seek attorney's fees. In
reply, the Plaintiffs argue that there is no support for the
Limited Subrogation/Assignment Agreement to apply to all breaches
of the entire Road Home contract suite.

Because the Plaintiffs assigned the state their respective "claims"
to FEMA and insurance payments, Judge Ashe finds that the state is
entitled to seek attorney's fees pursuant to the Limited
Subrogation/Assignment Agreement on any action regarding such
claims, including an action to recoup the payments the Plaintiffs
failed to disclose before closing. Consequently, the fee-shifting
provision in the Limited Subrogation/Assignment Agreement provides
the basis for the Defendants' "threat" of attorney's fees contained
in the collection letters,184 and this alleged "threat" did not
violate the FDCPA as the Plaintiffs claim.

Judge Ashe also finds that if in seeking to recoup the undisclosed
insurance and FEMA payments the Defendants were to claim that the
Plaintiffs engaged in fraud by failing to disclose such payments in
their grant application, the Defendants could seek to recover
attorney's fees under an express provision of Louisiana law.
Whether the Plaintiffs did, in fact, engage in fraud is not before
the Court. Because there is a reasonable basis in law for an
attorney's fees claim under a theory of fraud, which theory is
contemplated by both Louisiana law and the parties' contracts, the
Plaintiffs' contention that the "Defendants have no right to
recover any attorney's fees incurred in collecting alleged
overpayments from Road Home grantees when the duplicate benefit
(e.g., FEMA and/or insurance payment) was made prior to grant
signing" is without merit. Thus, the Plaintiffs' third claim for
relief fails and is dismissed.

F. Plaintiffs' fourth claim for relief -- that the Defendants
violated the FDCPA by inducing debtors to make payment or take
other action to revive time-barred debts -- fails.

The Plaintiffs charge the Defendants with "inducing debtors to make
payment or sign promissory notes without disclosing that such
action might revive the statute of limitations on their time-barred
debts arising from alleged breaches of the Plaintiffs' Road Home
obligations, and then actually negotiating such limitation-reviving
acknowledgements of the debt after the limitation period has
accrued." But no such violation occurred because, as reviewed,
neither Calogero's debt nor Randolph's debt was time-barred at the
time the Defendants sent their collection letters. Accordingly,
Judge Ashe dismisses the Plaintiffs' fourth claim.

G. Plaintiffs' motion for class certification necessarily fails.

In their motion for class certification, the Plaintiffs move
pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil
Procedure to certify The Plaintiffs as representatives to bring
claims for the following defined classes:

      UMBRELLA CLASS DEFINITION: The class consists of all
Louisiana residents who received a Road Home Homeowner's Grant for
personal, family or household purposes to whom Defendants sent a
collection letter in the form of Exhibits 4 and/or 5189 within the
one year period prior to the filing of this lawsuit, and who also
fall into one or more of the following subclasses.

          A. The first subclass consists of: those to whom
Defendants sent a collection letter in the form of Exhibits 4
and/or 5, which letter did not itemize the alleged debt by category
including insurance or FEMA benefits which duplicated the grant
payment and/or did not state the source of the alleged duplicate
payment.

          B. The second subclass consists of: those to whom
Defendants sent a collection letter in the form of Exhibits 4
and/or 5 more than five years after the grant Agreement was signed
which did not state that the alleged debt was not legally
enforceable and that a payment would renew the debt.

          C. The third subclass consists of: those to whom
Defendants sent a collection letter in the form of Exhibits 4
and/or 5 which stated that you may also be responsible for ...
attorney fees.

          D. The fourth subclass consists of: those to whom
Defendants sent a promissory note in the form of Exhibit 6190
obligating them to repay alleged grant overpayments, without
advising that signing the instrument would revive any statute of
limitations that had run against legal action on the alleged debt.

Each subclass corresponds with one of the Plaintiffs' four claims
that the Defendants violated the FDCPA. Judge Ashe, however, has
dismissed each claim. And, where each of the Plaintiffs' claims
fails, so too does the class. The class action fails because
neither the Plaintiff, as a proposed class representative, has
standing to pursue any case or controversy. Thus, Plaintiffs'
motion for class certification is denied.

IV. Conclusion

Accordingly, for the foregoing reasons,  Judge Ashe denies the
Plaintiffs' (1) motion for partial summary judgment as to their
first claim for relief regarding the Defendants' violation of the
FDCPA by failing to itemize alleged debts; (2) motion for partial
summary judgment as to their second claim for relief regarding the
Defendants' violation of the FDCPA by threatening to take legal
action on time-barred debts; (3) motion for partial summary
judgment as to their third claim for relief regarding the
Defendants' violation of the FDCPA by threatening to assess
attorney's fees; (4) motion for partial summary judgment as to
their fourth claim for relief regarding the Defendants' violation
of the FDCPA by inducing debtors to make payment or take other
action to revive time-barred debts; and (5) motion to certify
class.

Judge Ashe denies as moot the Plaintiffs' motion to strike
references to Exhibit 1 and other unsubstantiated allegations in
the Defendants' memorandum in support of their motion for summary
judgment.

Judge Ashe grants the Defendants' motion for summary judgment.

A full-text copy of the Court's July 12, 2022 Order & Reasons is
available at https://tinyurl.com/m4nyxe28 from Leagle.com.


STRAUB CONSTRUCTION: Durland's Bid for Default Judgment Granted
---------------------------------------------------------------
In the case, DONALD DURLAND and ROBERT FRITCHIE, Plaintiffs v.
JESSIE JAMES STRAUB and STRAUB CONSTRUCTION LLC, Defendants, Case
No. 3:20-cv-00031-IM (D. Or.), Judge Karin J. Immergut of the U.S.
District Court for the District of Oregon issued an Opinion and
Order:

   a. granting the Plaintiffs' Amended Motion for Default
      Judgment; and

   b. awarding damages -- exclusive of prejudment interest -- in
      the amount of $125,444.04 to Plaintiff Durland, and
      $32,883.40 to Plaintiff Fritchie.

I. Background

The matter comes before the Court on the Plaintiffs' Amended Motion
for Default Judgment. Plaintiffs Durland and Fritchie seek default
judgment against their former employer, Defendants Straub and
Straub Construction. The Plaintiffs allege state and federal claims
related to wage and hour violations against the Defendants.

The Plaintiffs both began their employment with Defendants in 2017
and ended with the company on Aug. 21, 2019. Plaintiff Durland was
employed as a shift foreman, and Plaintiff Fritchie worked on
Plaintiff Durland's construction team. On every workday, the
Plaintiffs would gather at the shop, receive instructions and
supplies, and then ride together to the work site they were
assigned to. However, the Plaintiffs did not receive compensation
for the time spent traveling between the shop and job sites. As
foreman, Plaintiff Durland was responsible for tracking the time
worked by the Defendants' employees and signing the time records.
When Plaintiff Durland told the Defendants that employees were
supposed to be paid for their travel time between the shop and job
sites, the Defendants refused, and ordered the Plaintiff to sign
time records that omitted the allegedly compensable travel time.

The Defendants also withheld a paycheck from Plaintiff Durland on
the false basis that he had taken a draw. Additionally, they
deducted all or part of the employer's share of the Oregon Workers'
Benefit Fund assessments from the Plaintiffs' wages. This included
failing to reduce the deduction after the statutory deduction rate
was changed. The Plaintiffs have still not been paid for the
additional travel time that they claim to be entitled to.

On Dec. 2, 2019, Plaintiff Durland filed the action in the
Multnomah County Circuit Court in the State of Oregon. On Jan. 7,
2020, the Defendants, represented by counsel, timely filed a Notice
of Removal and removed the case. On Jan. 14, 2020, the Defendants
submitted an Answer to the Plaintiff's Complaint and asserted
counterclaims. On Sept. 20, 2020, the Court granted the Defendants'
counsel's request to withdraw. On March 10, 2021, the Plaintiffs
filed an Amended Complaint which added Plaintiff Fritchie to the
action. On April 5, 2021, after the deadline to respond to the
Plaintiffs' Complaint had passed, the Plaintiffs moved for entry of
default, and the Court granted the request. On June 20, 2021, the
Plaintiffs filed a Motion for Default Judgment. On Jan. 13, 2022,
the Court held a hearing where it ordered the Plaintiffs to file an
amended motion that clarified their request for damages and
provided additional factual detail. On Feb. 14, 2022, the
Plaintiffs filed an Amended Motion for Default Judgment which the
Court now considers.

II. Discussion

Under Federal Rule of Civil Procedure 55(a), the Clerk of the Court
is required to enter an order of default if a party against whom
affirmative relief is sought fails timely to answer or otherwise
defend an action. Upon the entry of default, the Court accepts "the
well-pleaded factual allegations" of the complaint "as true." The
court, however, does not accept as admitted facts that are not
well-pleaded, conclusions of law, or facts relating to the amount
of damages.

After default has been entered against a defendant, a court may
enter a default judgment against that defendant. "The district
court's decision whether to enter a default judgment is a
discretionary one." The "starting point" of the court's analysis,
however, "is the general rule that default judgments are ordinarily
disfavored."

The Plaintiffs' Amended Motion for Default Judgment and their
declarations in support which allege that the Defendants violated
the Fair Labor Standards Act ("FLSA") and various Oregon wage and
hour statutes. The Plaintiffs claim that they were not compensated
for time spent traveling to job sites, were subject to wrongful
deductions, and were compelled to sign false time records.

Judge Immergut's default judgment analysis is guided by the Ninth
Circuit's decision in Eitel v. McCool, 782 F.2d 1470, 1472 (9th
Cir. 1986), where it  set out the factors that guide a district
court's consideration of whether to enter default judgment. Factors
which may be considered by courts in exercising discretion as to
the entry of a default judgment include: (1) the possibility of
prejudice to the plaintiff, (2) the merits of plaintiff's
substantive claim, (3) the sufficiency of the complaint, (4) the
sum of money at stake in the action; (5) the possibility of a
dispute concerning material facts; (6) whether the default was due
to excusable neglect, and (7) the strong policy underlying the
Federal Rules of Civil Procedure favoring decisions on the merits.

Judge Immergut finds that the Eitel factors favor default judgment.
As a threshold matter, she notes that the Plaintiffs have alleged
sufficient facts to support the exercise of personal jurisdiction
in the case. Further, the Court has federal question jurisdiction
over the action pursuant to 28 U.S.C. Section 1331, as the action
is brought under the FLSA, 29 U.S.C. Sections 201, et seq.

First, Judge Immergut holds that given the Defendants' failure to
cooperate in the lawsuit and the Plaintiffs' lack of alternative
avenues of recovery, the Plaintiffs would suffer prejudice if
default judgment is not entered. Second, she finds that the
Plaintiffs have adequately stated a claims for unpaid wages,
coerced false time reports, wrongful deductions, minimum wage
violation, and unpaid wages under the statute. Third, she finds
that the default judgment requested is more than nominal, but less
than that sought in previous cases denying default judgment.
Fourth, where the Plaintiff's complaint is well-pleaded and the
defendant makes no effort to properly respond, the likelihood of
disputed facts is very low. Fifth, she finds that there is no
indication that the Defendants' default has resulted from excusable
neglect. Lastly, the Defendants have failed to participate in the
case, which "makes a decision on the merits impractical, if not
impossible."

Turning to damages, Judge Immergut finds that Plaintiff Durland is
entitled to $125,444.04 -- including $33,061.30 (overtime), $4,560
(overtime penalty), $822.74 (wrongful deductions), and $87,000
(coerced time reports). Plaintiff Fritchie is entitled to
$32,883.40 -- including $28,603.40 (overtime), $4,080.00 (overtime
penalty), and $200 (wrongful deductions). By statute, Oregon law
also entitles the Plaintiffs to 9% prejudgment interest running on
all moneys after they become due.

III. Conclusion

Judge Immergut grants the Plaintiffs' Amended Motion for Default
Judgment, and awards damages -- exclusive of prejudgment interest
-- in the amount of $125,444.04 to Plaintiff Durland, and
$32,883.40 to Plaintiff Fritchie. Taking her ruling into
consideration, the Plaintiffs are ordered to submit a supplemental
declaration with their calculation of the prejudgment interest owed
on their state law claims.

A full-text copy of the Court's July 12, 2022 Opinion & Order is
available at https://tinyurl.com/3aacfmrr from Leagle.com.


ZOAN MANAGEMENT: Order Affirming Arbitration in Gist Suit Upheld
----------------------------------------------------------------
In the case, Jeff GIST, individually and on behalf of all similarly
situated, Petitioner on Review v. ZOAN MANAGEMENT, INC.; Senvoy,
LLC; and Driver Resources, LLC, a domestic limited liability
company, Respondents on Review, Case Nos. (CC 1311-15916), (CA
A159509), (SC S067992) (Or.), the Supreme Court of Oregon affirms:

    (i) the decision of the Court of Appeals affirming the trial
        court's grant of the Defendants' motion to compel
        arbitration; and

   (ii) the judgment of the circuit court.

After the Plaintiff filed the class-action complaint against the
Defendants in the trial court, the Defendants filed a motion to
compel arbitration. The trial court granted the motion. The
Plaintiff appealed, and the Court of Appeals affirmed. On the
Plaintiff's petition, the Supreme Court allowed review.

The Plaintiff and the Defendants executed a contract -- the "Driver
Services Agreement" (DSA) -- for the Plaintiff to provide delivery
services for the Defendants. The DSA states that drivers are
independent contractors.

The DSA includes a section on dispute resolution. That section
provides that any party "may propose mediation as appropriate" as a
means for resolving a dispute arising out of or relating to the
DSA. It then provides that, if the parties do not pursue mediation
or mediation fails, "any dispute, claim or controversy" arising out
of or relating to the DSA -- including disputes about "the
existence, scope, or validity" of the DSA itself—shall be
resolved through binding arbitration conducted by a panel of three
arbitrators. The DSA also includes a savings clause, which allows
for the severance of any invalid or unenforceable term or provision
of the DSA.

Thus, the DSA reflects the parties' agreement that, if the
arbitrators determine that a term or provision of the DSA is
invalid or unenforceable, the arbitrators have the authority to
disregard that term or provision and apply the remaining provisions
of the DSA.

Approximately three years after the parties executed the DSA, the
Plaintiff filed a complaint against the Defendants, asserting that
he was not an independent contractor, but instead was an employee
and that the Defendants had violated Oregon statutes governing
employee wages and hours. The Plaintiff brought his claims as a
class action on behalf of himself and "all current and former
individuals subject to" the DSA.

In response to the Plaintiff's complaint, the Defendants filed a
motion to compel arbitration, pursuant to the Federal Arbitration
Act (FAA).  The Plaintiff did not dispute that the FAA applied.
Instead, he argued that the arbitration agreement in the DSA was
not enforceable because it is unconscionable. As mentioned, the
trial court granted the Defendants' motion, the Defendants
appealed, the Court of Appeals affirmed, and the Supreme Court
allowed review.

Under the FAA, courts can only consider the unconscionability of
the arbitration provisions specifically, not of the DSA as a
whole.

On review, the Plaintiff argues, inter alia, that the arbitration
agreement within the DSA is unconscionable because it requires him
to arbitrate his wage and hour claims but prohibits the arbitrators
from granting him relief on those claims. The Defendants disagree
with the Plaintiff's reading of the provision that the arbitrators
cannot "alter, amend or modify" the DSA.

Noting that the arbitration agreement provides that the arbitrators
have authority to decide "any dispute, claim or controversy" that
arises out of or relates to the DSA, they concede that the
arbitrators' authority "certainly includes questions as to whether
drivers are independent contractors or are entitled to the benefits
of classification as employees under Oregon's wage and hour
statutes." They conclude that an arbitration agreement that limits
the arbitrator's authority to 'alter, amend, or modify' the terms
of the DSA does not limit any statutorily mandated rights."

The Court of Appeals agreed with the Defendant's reading of the
DSA, as does the Supreme Court. As the Court of Appeals explained,
read in the context of the DSA as a whole, the provision that the
arbitrators may not "alter, amend or modify" the terms and
conditions of the DSA "is not plausibly read as a restriction on
their authority to determine what terms are enforceable or what law
is controlling." The DSA itself therefore shows that the parties
expected the arbitrators to disregard invalid or unenforceable
provisions of the DSA.

Consequently, the DSA does not prevent the arbitrators from
concluding that the DSA's provisions classifying the drivers as
independent contractors are invalid or unenforceable and that the
Plaintiff was an employee. If the arbitrators so conclude, then
they can resolve the Plaintiff's claims under Oregon's wage and
hour statutes.

In sum, nothing in the DSA prohibits the arbitrators from granting
the Plaintiff any relief he might be entitled to under Oregon's
wage and hour statutes. Therefore, the Supreme Court rejects the
Plaintiff's claim that the parties' arbitration agreement violates
ORS 652.360. Because the arbitration provision does not violate
that statute, it is not unconscionable.

The decision of the Court of Appeals and the judgment of the
circuit court are affirmed.

A full-text copy of the Court's July 8, 2022 Order is available at
https://tinyurl.com/33z6b7z4 from Leagle.com.

Lisa T. Hunt -- lthunt@lthuntlaw.com -- Law Office of Lisa T. Hunt,
in Lake Oswego, Oregon, argued the cause and filed the briefs for
petitioner on review. Also on the briefs was David A. Schuck,
Schuck Law LLC, in Vancouver, Washington.

Nicholas V. Beyer -- nbeyer@pfglaw.com -- Parsons Farnell & Grein,
LLP, in Portland, Oregon, argued the cause for respondents on
review. Charles J. Paternoster filed the brief. Also on the brief
was Nicholas V. Beyer.

Christina E. Stephenson, Meyer Stephenson, Portland, filed the
brief for amicus curiae Oregon Trial Lawyers Association.


                        Asbestos Litigation

ASBESTOS UPDATE: Wash Penn to Pay $3.8MM to Mesothelioma Victim
---------------------------------------------------------------
Sarah Patsaros, writing for stltoday.com, reports that Simmons
Hanly Conroy, one of the nation's largest mesothelioma law firms,
has secured a $3.8 million verdict against Washington Penn Plastics
(Wash Penn) on behalf of the estate of Daniel "Dan" Rugg and his
wife Sandra Rugg. Mr. Rugg died of mesothelioma, an occupational
cancer caused by asbestos, after working for approximately thirty
years as a maintenance worker at the Pennsylvania plastics factory.


The jury found Wash Penn failed to provide a reasonably safe
workplace and awarded $1.4 million in compensatory damages to the
family's estate, $1.65 million in wrongful death damages, and
$750,000 in loss of consortium to Sandra Rugg.

"After examining hundreds of pieces of evidence, the jury found
that Wash Penn failed to provide a reasonably safe workplace by
using industrial talc that contained asbestos," said Shareholder
James Kramer, who served as trial counsel with Shareholder Donald
P. Blydenburgh. "The jury clearly understood that companies must
take responsibility for exposing their employees to asbestos."

Expert testimony during the trial showed that the talc used at the
plant contained asbestos fibers. Mr. Rugg dumped 50-pound bags of
industrial talc into giant storage hoppers. Washington Penn was
provided with testing documents showing its industrial talc
contained asbestos but never shared that information with their
employees, including Dan Rugg.

Testimony during trial revealed Washington Penn knew of the dangers
of asbestos as early as the 1960s. Yet, the factory never warned
its employees or required them to wear protective gear like masks
or use respirators.

"Dan's asbestos exposure was prolonged and immense," said
Blydenburgh. "He worked hard his entire life so he could enjoy
retirement with his grandchildren. Instead, he developed and died
from an entirely preventable cancer."

Mr. Rugg was an avid outdoorsman and enjoyed taking his
grandchildren camping and fishing. After developing symptoms in
2018, he underwent several tests and surgical procedures, including
a thoracentesis where fluid was removed from his lungs. He was
diagnosed with mesothelioma in spring 2019 and passed away in 2021
at 64.

Every day of the trial, Sandra Rugg sat in the courtroom holding a
picture of Dan.

"This lawsuit was never about the money," she said. "This is about
the fact that a jury has held Wash Penn responsible for putting
profits over its people. I hope no other family has to go through
the loss and pain my family and I have experienced."

The trial lasted 3 weeks, and the jury deliberated for a day. The
verdict was awarded on Thursday, July 14.

In addition to Kramer and Blydenburgh, Shareholders Randy S. Cohn,
Jared Hausmann and Todd Gampp represented Sandra and the family in
the Pennsylvania Court of Common Pleas before the Hon. Glynnis D.
Hill.

The verdict marks the tenth mesothelioma verdict the firm has won
on behalf of mesothelioma patients in the past five years.


                            *********

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